Common use of Registration Procedures Clause in Contracts

Registration Procedures. In the case of each registration effected by the Company pursuant to this Article II, the Company will 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 financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their 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 Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in 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.)

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Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to any Holder of over $250,000 Subscription Amount copies of all such documents proposed to be filed therewith, and before filing (including documents incorporated or deemed incorporated by reference to the extent requested by such registration statement, Person) which documents will be subject to the review of such Holders. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements theretothereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, or Prospectus, furnish to provided that the Holder or group Company is notified of such objection in writing no later than 5 Trading Days after the Holders have been so furnished copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;such documents. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and, as promptly as 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 (viv) 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. (c) Furnish Notify the Holders of Registrable Securities to be sold as promptly as reasonably possible and (if requested by any such Person) confirm such notice in writing promptly following the Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of the Registration Statement and qualify whenever the securities covered by such registration statement pursuant to Commission comments in writing on the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request 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 related thereto; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder, without charge, at least one conformed copy of 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 such Registration Statement or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (h) 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 pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post﷓effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hii) Prevent or obtain through (v) of Section 3(c) above to suspend the withdrawal use of any stop order or other order suspending the use of any preliminary or final Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus; (i. 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) Promptly incorporate in to suspend the availability of a Prospectus supplement or post-effective amendment such information as the managing underwriter Registration Statement and the Holder or group of Holders agree should be included therein relating Prospectus, subject to the plan payment of distribution with respect liquidated damages pursuant to such securitiesSection 2(b), and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters for a period not to exceed 90 days (which need not be incorporated consecutive days) in such Prospectus supplement or post-effective amendment;any 12 month period. (j) Cooperate Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each Holder 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and dispositive control over the managing underwriter, Shares. During any periods that the Company is unable to meet its obligations hereunder with copies respect to the registration of the Registrable Securities solely because any Holder or group of Holders, a “cold comfort” letter from the Company’s independent certified public accountants in customary form and covering fails to furnish 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all information within three Trading Days of the Company’s officersrequest, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any liquidated damages that are accruing at such Person in connection with such disposition as time shall be necessary to enable them to exercise their due diligence responsibilitytolled and any Event that may otherwise occur solely because of such delay shall be suspended, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 2 contracts

Samples: Registration Rights Agreement (Imageware Systems Inc), Registration Rights Agreement (Imageware Systems Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders owning Registrable Securities Act registered under such Registration Statement copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file any such Registration Statement or any such Prospectus or any amendments or supplements theretothereto to which the Holders of a majority of the Registrable Securities registered thereunder shall reasonably object in good faith, or Prospectus, furnish to provided that the Holder or group Company is notified of such objection in writing no later than five Trading Days after such Holders have been so furnished copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the a Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the applicable Registrable Securities for the applicable Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a such Registration Statement or any amendment theretothereto and, as promptly as reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (viv) 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 TZE such Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the Holders’ intended methods of disposition by the Holders thereof as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to the Holder or group of Holders and each underwriter, if any, without charge, be sold as many conformed copies promptly as such Holder or group of Holders reasonably possible (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of a Registration Statement and qualify whenever the securities covered by such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Commission comments in writing on a Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request other Federal or state governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to such Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of such Registrable Securities or the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event of which the Company has knowledge as a result of which the Prospectus included in such registration statementa Prospectus, as then in effect, includes an contains 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 therein, in light of the circumstances under which they were made, not misleading. (d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as promptly as reasonably practicable. (e) Furnish to each Holder, 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person in writing (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (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 delivered to a transferee pursuant to the applicable Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the applicable Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither such Registration Statement nor the purchasers of such securities, such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hii) Prevent or obtain through (v) of Section 3(c) above to suspend the withdrawal use of any stop order or other order suspending the use of any preliminary or final Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus; (i) Promptly incorporate in . The Company will use its commercially reasonable efforts to ensure that the use of a Prospectus supplement or post-effective amendment such information 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 managing underwriter availability of a Registration Statement and the Holder or group of Holders agree should be included therein relating applicable Prospectus, subject to the plan payment of distribution with respect liquidated damages pursuant to such securitiesSection 2(b), and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters for a period not to exceed 60 Trading Days (which need not be incorporated consecutive days) in such Prospectus supplement or post-effective amendment;any 12 month period. (j) Cooperate Comply in all material respects with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each Holder, upon three Trading Days’ notice, 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish to the Company a certified statement as to, among other things, the number of shares of Common Stock beneficially owned by such Holder 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 person that has voting and covering dispositive control over 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoShares.

Appears in 2 contracts

Samples: Registration Rights Agreement (Verticalnet Inc), Registration Rights Agreement (Verticalnet Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of a Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, furnish via email to those Purchasers or Prospectus, furnish to their counsels who have supplied the Holder or group of Holders Company with email addresses copies of all such documents prepared proposed to be filed, which documents shall (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review ofof such Purchasers (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, then the Holder or group Purchaser shall be deemed to have consented to and approved the use of Holders such documents). The Company shall reflect in each such document when so filed with the Commission such comments regarding the Purchasers and their respective counsel;the plan of distribution as the Purchasers may reasonably and promptly propose no later than two Trading Days after the Purchasers have been so furnished with copies of such documents as aforesaid. (i) Prepare Subject to Section 5.1(d), prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, ; and (viii) 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 Purchasers thereof as set forth in the TZE Registration StatementStatement 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) Furnish Notify the Purchasers as promptly as 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: (i) the Commission notifies the Company whether there will be a “review” of any Registration Statement; (ii) any Registration Statement or any post-effective amendment is declared effective; (iii) the Commission issues any stop order suspending the effectiveness of any Registration Statement or initiates any Proceedings for that purpose; (iv) the Company receives notice of any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction, or the initiation or threat of any Proceeding for such purpose; (v) the financial statements included in any Registration Statement become ineligible for inclusion therein; and (vi) the occurrence or existence of any pending development with respect to the Holder or group Company that the Company believes may be material and that, in the determination of Holders the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement, provided that any and all of such information shall remain confidential to each underwriterPurchaser until such information otherwise becomes public, unless disclosure by a Purchaser is required by law; provided, further, that notwithstanding each Purchaser's agreement to keep such information confidential, the Purchasers make no acknowledgement that any such information is material, non-public information. (d) Use commercially reasonable best efforts to avoid the issuance of or, if anyissued, obtain the withdrawal of (i) any order suspending the effectiveness of 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, as soon as possible. (e) If requested by a Purchaser, provide such Purchaser, without charge, as many at least one conformed copies as such Holder or group copy of Holders or any underwriter may reasonably request of the TZE each Registration Statement and any amendment or post-effective each 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; 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. (df) FurnishPromptly deliver to each Purchaser, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such number Persons may reasonably request. The Company hereby consents to the use of Prospectuses, including any preliminary Prospectuses, such Prospectus and other documents incident thereto, including each amendment or supplement thereto by each of the selling Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and 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 declared effective, thereto to the extent required permitted by applicable lawfederal and state securities laws and regulations. (g) Prior to any resale of Registrable Securities by a Purchaser, use commercially reasonable best efforts to register and or qualify or cooperate with the securities covered by selling Purchasers in connection with the registration or qualification (or exemption from such registration statement pursuant to 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 Purchaser requests in writing, to keep each jurisdiction such registration or qualification (or exemption therefrom) effective for so long as shall be required, but not to exceed the duration of the Effectiveness Period, and to do any and all other acts or things reasonably requested necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Holder or group of Holdersa Registration Statement; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or obligated to file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any such states or jurisdictions where jurisdiction in which it is not then so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;. (fh) Notify Cooperate with the Holder or group Purchasers to facilitate the timely preparation and delivery of Holders certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Agreement and the managing underwriterunder law, if anyof all restrictive legends, and (if requested) confirm to enable such advice Registrable Securities to be in writing such denominations and provide copies of the relevant documents, registered in such names as soon as any such Purchasers may reasonably practicable after notice thereof is received by the Company, request. (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of Upon the occurrence of any event as a result of which the Prospectus included described in such registration statementSection 5.2(c)(iii)-(vi), as then in effectpromptly as reasonably practicable, includes an untrue statement of prepare a material fact supplement or omits amendment, including a post-effective amendment, to state the Registration Statement or a material fact required supplement to the related Prospectus or any document incorporated or deemed to be stated incorporated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleadingby reference, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Holder or group Registrable Securities of Holders 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 other information regarding itself, the Registrable Securities and other shares of Common Stock held by it and the managing underwriterintended 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, if anyexcept in the case of any such information referred to in this paragraph, to facilitate the timely preparation and delivery of certificates representing securities extent the failure to be sold that are in a form eligible for deposit provide such information does not materially affect the Company’s ability to comply 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);obligations. (k) Provide a transfer agent The Company shall comply with all applicable rules and registrar for all regulations of the Commission under the Securities registered Act and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the Commission pursuant to Rule 424 under the TZE Registration Statement and a CUSIP number for all such securitiesSecurities Act, promptly inform the Purchasers in each case not later than writing if, at any time during the effective date of such registration; (l) Cause all such securities registered hereunder to be listed on each securities exchange on which the same securities issued by Effectiveness Period, the Company are then listed; (m) In connection with any underwritten offering meeting does not satisfy the requirements of Section 2.1(e)conditions specified in Rule 172 and, 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, as a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwritingresult thereof, the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery Purchasers are required to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, make available 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 Prospectus in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, disposition of Registrable Securities and take such other actions as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by necessary to facilitate the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoregistration of the Registrable Securities hereunder.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Enphase Energy, Inc.), Securities Purchase Agreement (Enphase Energy, Inc.)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: (i) Not less than four (4) Trading Days prior to the initiation filing of each registration and as a Registration Statement or any related Prospectus or any amendment or supplement thereto (other than any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant shall furnish to the Securities Act Holder and Holder Counsel copies of all such documents proposed to be filed therewith, and before filing shall reasonably consider any comments thereto from the Holder and Holder Counsel. The Company shall not file a Registration Statement or any such registration statement, Prospectus or any amendments or supplements thereto, or Prospectus, furnish thereto to the which Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object. (iii) (w) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each 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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiix) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (ivy) respond as promptly as reasonably possible promptly, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and as promptly as reasonably possible provide the 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 (vz) 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 Holder thereof as set forth in the TZE Registration StatementStatement as so amended or in such Prospectus as so supplemented. (ciii) Furnish Notify the Holder and Holder Counsel as promptly as reasonably possible, and (if requested by any such Person) confirm such notice in writing no later than one Trading Day thereafter, of any of the following events: (i) the Commission notifies the Company whether there will be a “review” of any Registration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to the Holder or group a copy of Holders such comments and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment all written responses 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 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 reasonably requested by the Holder or group of Holders; provided, however, that the Company shall will 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of any responses that would result in the relevant documents, as soon as reasonably practicable after notice thereof is received by disclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company, ); (iiii) when the TZE any Registration Statement, Statement or any post-effective amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filedis declared effective; and (iiiv) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority requests any amendment or regulatory authority for amendments or supplements supplement to the TZE any Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included or incorporated by reference in any time when a Prospectus relating to the TZE 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 to be delivered pursuant to the Securities Act of the occurrence of so that it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (iv) Use reasonable best efforts to avoid the issuance of or, and following such notification promptly prepare and furnish if issued, obtain the withdrawal of (i) any order suspending the effectiveness of 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, as soon as practicable. (v) Furnish or make available to the Holder and Holder Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements (but excluding schedules, all documents incorporated or group deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by the Holder or Holder Counsel), and such other documents, as the Holder or Holder Counsel may reasonably request, promptly after the filing of Holders a reasonable number of such documents with the Commission. (vi) Promptly deliver to the Holder and 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. Subject to Section 11(e), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by the Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (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 reasonable best efforts to register or qualify or cooperate with the Holder and 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 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. (ix) Cooperate with the Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Warrant, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as the Holder may request. (x) Upon the occurrence of any event described in clause (vii) of Section 11(b)(iii) of this Warrant, as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the affected Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 2 contracts

Samples: Warrant Agreement (Numerex Corp /Pa/), Warrant Agreement (Qumu Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: 3.1 Not less than five business days prior to the initiation filing of each registration and as Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: shall, (ai) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Holder or group Company is notified of such objection in writing no later than 4 business days after the Holders and their respective counsel;have been so furnished copies of such documents. 3.2 (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE Registration Statement. (c) 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 Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment as so amended 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretosupplemented.

Appears in 2 contracts

Samples: Private Placement Subscription Agreement (Fuqin Fintech LTD), Private Placement Subscription Agreement (Fuqin Fintech LTD)

Registration Procedures. In the case of each registration effected The procedures to be followed by the Company pursuant to this Article IIand each selling Holder, and the respective rights and obligations of the Company will use its reasonable best efforts to effect and such registration to permit the sale of securities in accordance Holders, 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 respect to the initiation preparation, filing and effectiveness of each registration a Registration Statement, and the distribution of Registrable Securities pursuant thereto, are as to the completion thereof. At its expense, the Company will use its reasonable best efforts tofollows: (a) Prepare the required TZE Registration StatementThe Company will, including all exhibits and financial statements required pursuant at least five (5) Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of a Registration Statement or any amendments related Prospectus or supplements theretoany amendment or supplement thereto (other than any amendment or supplement made through the incorporation by reference of ordinary course Exchange Act filings), or Prospectus, (i) furnish to the Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall will be subject to the reasonable review of, the Holder or group of such Holders and their respective counsel;(ii) use its commercially reasonable efforts to address in each such document when so filed with the Commission such comments as the Holders reasonably shall propose. (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 TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable law with respect to keep the TZE disposition of all Registrable Securities covered by such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; and (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a each Registration Statement or any amendment theretothereto 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 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. (vc) 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 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 each Registration Statement. (c) 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 Holders or any 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 Company will notify the Prospectus, Holders 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon promptly as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) Promptly notify the Holder or group of Holders possible (i) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; and (ii) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were made not misleading;. (he) Prevent or The Company will use commercially reasonable efforts to obtain the withdrawal of any stop order or other order suspending the effectiveness of a Registration Statement, at the earliest practicable moment, or if any such order or suspension is made effective during any Black-Out Period, at the earliest practicable moment after the Black-Out Period is over. (f) During the Effectiveness Period, the Company will furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Person (including those 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) The Company will promptly deliver to each Holder, without charge, as many copies of each Prospectus or Prospectuses (other than any amendment or supplement made through the incorporation by reference of ordinary course Exchange Act filings) as such Persons may reasonably request during the Effectiveness Period. The Company 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 preliminary amendment or final Prospectus;supplement thereto in accordance with this Agreement. (h) The Company will, prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or blue sky laws of those 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 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 the Registration Statements; provided, that the Company 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 (ii) take any action which would subject the Company to general service of process or any material tax in any such jurisdiction where it is not then so subject. (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 The Company will 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 Registrable Securities to be sold that are in delivered to a form eligible for deposit with The Depository Trust Company and that do not bear any transferee pursuant to the Registration Statements, which certificates shall be free, to the extent permitted by the Indenture, of all restrictive legends, and to enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter any such Holders may request in writing. In connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to its transfer agent 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 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) The Company will use commercially reasonable efforts to prepare such supplements or amendments, including a post-effective amendment, if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at least two Business Days all times during the Effectiveness Period; provided, that no such supplement, 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 to resell Registrable Securities, the Company will (A) provide written confirmation to such 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 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 sale 30 Trading Day period following delivery of securities in any underwritten offering a Use Notice and a notice from the Company under clause (A) above, the Company will provide as promptly as practicable the Holders with written notice thereof and that meets the requirements of Section 2.1(e);Registration Statement is no longer Available. (k) Provide a transfer agent and registrar for all Notwithstanding any other provision of the Agreement, no Holder of Registrable Securities registered may include any of its Registrable Securities in the Registration Statement pursuant to this Agreement unless the TZE 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 and at least ten (10) Trading Days prior to the filing of the Registration Statement; provided, however, an Investor shall not be required to furnish a CUSIP number for all Questionnaire in connection with the initial Registration Statement if such securities, Investor owns Notes initially purchased by such Investor at the Closing as of the initial Filing Date. Each Holder who intends to include any of its Registrable Securities in each case not later than the effective date of Registration Statement shall promptly furnish the Company in writing such registration;other information as the Company may reasonably request in writing. (l) Cause all such securities registered hereunder 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 listed on each securities exchange on which the same securities issued 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 such underwritten offering agrees to sell such Holder’s Registrable Securities on the 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 terms of such underwriting arrangements. The Company are then listed;hereby agrees with each Holder that, in connection with any underwritten offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, including using all commercially reasonable efforts to procure customary legal opinions and auditor “comfort” letters. (m) In connection with any the event the Holders seek to complete an underwritten offering meeting the requirements of pursuant to Section 2.1(e3(l), 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 for a 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant period prior to the underwriting agreement, in customary form, scope and substance, which opinion shall be reasonably satisfactory to such Holder or group filing 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 and throughout the Effectiveness Period, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of Section 2.1(e) will make available upon reasonable notice at the Company’s principal place of business or such other reasonable times and for reasonable periods place for inspection by a representative appointed by any Holder, by the managing underwriter and by any attorneyor underwriters selected in accordance with Section 3(l), accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents information and properties books and records of the Company, and cause all of the Company’s officers, directors employees, counsel and employees and the independent certified public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any respond to such Person in connection with such disposition 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 enable them 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 legal counsel to exercise their due diligence responsibilitythe Holders (and legal counsel to such managing underwriter or underwriters); provided further, provided that each such party shall be required to maintain in confidence and not to disclose to any such other Person gaining access to any information regarding or records reasonably designated by the Company pursuant to this Section 2.4(ras being confidential, until such time as (A) shall agree to hold such information becomes a matter of public record (whether by virtue of its inclusion in strict confidence and shall not make the Registration Statement or in any disclosure or use any such information that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (i) other manner other than through the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect afforded access to such information and of which the Holder is aware; pursuant hereto), or (ivB) such Person shall be required so to disclose such information is independently developed by such Person; and pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (s) In connection with any underwritten offering meeting subject to the requirements of Section 2.1(e)such order, cause the senior executive officers of and only after such Person shall have given the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any prompt prior written notice of such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretorequirement).

Appears in 2 contracts

Samples: Registration Rights Agreement, Registration Rights Agreement (Netflix Inc)

Registration Procedures. In connection with the case registration obligations of each registration effected by the Company AIMCO pursuant to this Article IIand in accordance with SECTION 2 hereof (and subject to AIMCO's rights under SECTION 2), the Company AIMCO will use its commercially reasonable best efforts to effect such registration to permit the sale of securities 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 and file with the SEC a Registration Statement for the sale of the Registrable Securities on any form for which AIMCO then qualifies or which counsel for AIMCO shall deem appropriate in accordance with such Holders' 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 expenseand, the Company will use its reasonable best efforts to: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review ofSECTION 2(d), the Holder or group of Holders use commercially reasonable efforts to cause such Registration Statement to become effective and their respective counselremain effective as provided herein; (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 Registrable Securities for the Effectiveness Period, (iib) prepare and file with the Commission as promptly as practicable any additional registration statements SEC such amendments (including post-effective amendments) to the Registration Statement, and such supplements to the Prospectus, as may be necessary required by the rules, regulations or instructions applicable to the Securities Act during the applicable period in order accordance with the intended methods of disposition specified by the Holders owning any Registrable Securities covered by such Registration Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that AIMCO shall be deemed to register for resale have complied with this clause if it has complied with Rule 158 under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this AgreementAct), and, and cause the Prospectus as so supplemented or amended, to be filed pursuant to Rule 424424 under the Securities Act; (c) notify the Holders owning any Registrable Securities covered by such Registration Statement promptly and (if requested) confirm such notice in writing, (ivi) respond as promptly as reasonably possible to when a Prospectus or any comments received from the Commission Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment theretoamendment, 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 when 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 declared same has become 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority SEC for amendments or supplements to the TZE a Registration Statement or the related Prospectus or for additional information; information regarding such Holders, (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE a Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, initiation of any proceedings for such purposes; that purpose, (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction or the initiation, initiation or written threatened initiation, threatening of any proceeding for such purpose; , and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence happening of any event as a result that requires the making of which the Prospectus included any changes in such registration statementRegistration Statement, as then in effect, includes an Prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; (d) use commercially 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 the United States; (e) furnish to the Holders disposing of Registrable Securities covered by such Registration Statement, counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of the Registration Statement, as declared effective by the SEC, and of each post-effective amend- ment thereto, in each case, including financial statements and schedules and all exhibits and reports incorporated or deemed to be incorporated therein by reference; and deliver, without charge, such number of copies of the preliminary prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment or supplement thereto, as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities covered by the Registration Statement in conformity with the requirements of the Securities Act; (f) prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions in the United States as the Holders disposing of Registrable Securities covered by the Registration Statement shall reasonably request in writing; PROVIDED, HOWEVER, that AIMCO shall 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 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 or taxation in any such jurisdiction where it is not then subject; (g) except during any Delay Period, upon the occurrence of any event contemplated by SECTION 4(c)(v) above, promptly file a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were made not misleading; (h) Prevent use commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange or obtain the withdrawal of any stop order automated interdealer quotation system, if any, on which similar securities issued by AIMCO are then listed or other order suspending the use of any preliminary or final Prospectusquoted; (i) Promptly incorporate in a Prospectus supplement on or post-before the 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 date of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (j) Cooperate Registration Statement, provide the transfer agent of AIMCO for the Registrable Securities with printed certificates for 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 Registrable Securities in a form eligible for deposit with The Depository Depositary 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)Company; (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 such securities registered hereunder to be listed on each securities exchange on which the same 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, (iij) if participating such offering is an underwritten offering, make available for inspection by any Holder disposing of Registrable Securities included 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 offering, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriterunderwriter (collectively, the "INSPECTORS"), all pertinent financial and other recordsrecords and other information, pertinent corporate documents and properties of any of AIMCO and its subsidiaries (collectively, the Company"RECORDS"), and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be reasonably necessary to enable them to exercise their due diligence responsibility; PROVIDED, provided HOWEVER, that any such Person gaining access the Records that AIMCO determines, in good faith, to information regarding the Company pursuant to this Section 2.4(r) shall agree to hold such information in strict confidence and be confidential shall not make be disclosed to any disclosure or use any such information that the Company determines in good faith to be confidential, and of which determination such Person is notified, 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 information Records is required by law; (ii) such information is ordered pursuant to a subpoena or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis order from a source other than the Companycourt of competent jurisdiction, which source had no contractual or other duty PROVIDED that each Holder shall, promptly after learning that disclosure of confidentiality such Records is sought in a court having jurisdiction, give notice to the Company with respect AIMCO and allow AIMCO, at AIMCO's expense, to undertake appropriate action to prevent disclosure of such information and of which the Holder is aware; or (iv) such information is independently developed by such PersonRecords; and (sk) In 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 with any underwritten offering meeting therewith (including those reasonably requested by the requirements managing underwriters) in order to expedite or facilitate the disposition of Section 2.1(esuch 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), cause the senior executive officers addressed to each Holder selling Registrable Securities covered by such Registration Statement and each of the Company underwriters as to participate the matters customarily covered in the customary “road show” presentations that 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 managing underwriter 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 to 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 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 require each Holder disposing of Registrable Securities covered by such Registration to furnish such information regarding the Holder and such Holder's intended disposition of Registrable Securities as AIMCO may from time to time reasonably request in writing. If any such underwritten offering and otherwise information with respect to facilitatethe Holder is not furnished within a reasonable period of time after receipt of such request, cooperate withAIMCO may exclude such Holder's Registrable Securities from such Registration. Upon receipt of any notice from AIMCO of the happening of any event of the kind described in SECTION 4(c)(ii), 4(c)(iii), 4(c)(iv) or 4(c)(v) hereof, each Holder shall (i) forthwith discontinue disposition of any Registrable Securities covered by such Registration Statement or Prospectus until receipt of the copies of the supplemented or amended Prospectus contemplated by SECTION 4(g) hereof, or until such Holder is advised in writing (the "ADVICE") by AIMCO that the use of the applicable Prospectus may be resumed, and participate has received copies of any amended or supplemented Prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by reference in each proposed such Prospectus (such period during which disposition is discontinued being an "INTERRUPTION PERIOD") and (ii) if requested by AIMCO, deliver to AIMCO (at the expense of AIMCO) all copies then in its possession, other than permanent file copies then in its possession, of the Prospectus covering such Registrable Securities at the time of receipt of such request. No Holder shall utilize any material other than the applicable current preliminary prospectus or Prospectus in connection with the offering contemplated herein and customary selling efforts related theretoof Registrable Securities pursuant to 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 case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of a Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, or Prospectus, furnish via email to those Investors who have supplied the Holder or group of Holders Company with email addresses copies of all such documents prepared proposed to be filed, which documents shall (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review of, of such Investors. The Company shall reflect in each such document when so filed with the Holder or group SEC such comments regarding the Investors and the plan of Holders distribution as the Investors may reasonably and their respective counsel;promptly propose no later than two Trading Days after the Investors have been so furnished with copies of such documents 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 TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any SEC such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within 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 a the Registration Statement or any amendment thereto, ; and (viv) 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 Investors thereof as set forth in the TZE Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish to Notify the Holder or group Investors as promptly as reasonably possible, and if requested by the Investors confirm such notice in writing no later than one Trading Day thereafter, of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group any of Holders the following events: (i) the SEC notifies the Company whether there will be a “review” of any Registration Statement; (ii) the SEC comments in writing on any Registration Statement; (iii) any Registration Statement or any 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 declared effective, to ; (iv) the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the securities SEC or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder any other Federal 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or state governmental authority requests any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of to any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of SEC issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of become ineligible for inclusion therein or any event as a result of which the Registration Statement or Prospectus included in such registration statement, as then in effect, includes an or other document contains any untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (d) Use its best efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of 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, as soon as possible. (e) If requested by an Investor, provide such Investor without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and following all exhibits to the extent requested by such notification Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC. (f) Promptly deliver to each Investor, 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. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Investors in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto 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 furnish 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 to register or qualify or cooperate with the selling 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 Investor requests in writing, to keep each such registration or qualification (or exemption therefrom) effective for so long as required, but not to exceed the duration of 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 obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. (i) Cooperate with the Investors to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the Holder or group extent permitted by this Agreement and under law, of Holders a reasonable number all restrictive legends, and to enable such certificates to be in such denominations and registered in such names as any such Investors may reasonably request. (j) Upon the occurrence of copies of any event described in Section 6.2(c)(vii), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 Cooperate with any reasonable due diligence investigation undertaken by the Investors in connection with the sale of Registrable Securities, including, without limitation, by making available documents and registrar for all Securities registered pursuant information; provided that the Company will not deliver or make available to the TZE Registration Statement any Investor material, nonpublic information unless such Investor requests in advance in writing to receive material, nonpublic information and a CUSIP number for all agrees to keep such securities, in each case not later than the effective date of such registration;information confidential. (l) Cause Comply with all such securities registered hereunder rules and regulations of the SEC applicable to be listed on each securities exchange on which the same securities issued by registration of the Company are then listed;Securities. (m) In connection 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 underwritten offering meeting particular Investor or to make any Event Payments set forth in Section 6.1(c) to such Investor that such Investor furnish to the requirements 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 Section 2.1(e), enter into an underwriting agreement in form 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 necessary required to effect the offer and sale registration of such securities, provided that (i) Registrable Securities and shall complete and execute such underwriting agreement contains reasonable and customary provisions, (ii) if participating documents in connection with such underwriting, a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwriting, registration as the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering;Company may reasonably request. (n) In connection The Company shall comply with any underwritten offering meeting all applicable rules and regulations of the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders SEC under the Securities Act and the underwriter an opinion from counsel for Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the SEC pursuant to Rule 424 under the Securities Act, promptly inform the Investors in writing if, at any time during the Effectiveness Period, the Company dated does not satisfy the date of the closing pursuant to the underwriting agreement, conditions specified in customary form, scope and substance, which opinion shall be reasonably satisfactory to such Holder or group of Holders and to the underwriterRule 172 and, as a result thereof, the case may be, and their respective counsel; (o) In connection with any underwritten offering meeting the requirements of Section 2.1(e) pursuant Investors are required to the TZE Registration Statement, obtain for delivery to the Company and the managing underwriter, with copies to any Holder or group of Holders, make available 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 Prospectus in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, disposition of Registrable Securities and take such other actions as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by necessary to facilitate the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoregistration of the Registrable Securities hereunder.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Zosano Pharma Corp), Securities Purchase Agreement (Zosano Pharma Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel; (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment theretothereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the 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 (viv) 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 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 as set forth in such Registration Statement as so amended or in such Prospectus as so supplemented. Each Holder agrees to furnish to the TZE 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. (b) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a 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. (c) Furnish to the Holder or group of Holders Comply with all applicable rules and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or any underwriter may reasonably request regulations 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);Commission. (d) Furnish, without charge, such number of Prospectuses, including any preliminary Prospectuses, and other documents incident thereto, including any amendment of or supplement The Company may require each selling Holder 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders Company a reasonable certified statement as to the number of copies shares of a supplement to, or an amendment of, Common Stock beneficially owned by such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 underwriterand, 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 such securities registered hereunder to be listed on each securities exchange on which the same securities issued required 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 underwritingCommission, the indemnification natural persons thereof that have voting and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, dispositive control over the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoshares.

Appears in 2 contracts

Samples: Registration Rights Agreement (Red Metal Resources, Ltd.), Registration Rights Agreement

Registration Procedures. In connection with the case registration obligations of each registration effected by the Company pursuant to this Article IIunder Section 2 hereof, the Company will use its reasonable best efforts to effect such registration to permit shall: (a) Prepare and file with the SEC a Prospectus or Prospectus supplement or a Periodic Report in respect of an Existing Shelf Registration Statement or an Initial Shelf Registration Statement on an appropriate form under the Securities Act available for the sale of securities the Registrable Securities by the Requesting Holders thereof in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable thereof, 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 to cause any such Initial Shelf Registration Statement, including all exhibits Statement or Existing Shelf Registration Statement to become effective and financial statements required pursuant to the Securities Act to be filed therewith, and remain effective as provided herein; provided that before filing such registration statement, any Initial Shelf Registration Statement or any Prospectus or any amendments or supplements thereto, or Prospectusthereto with the SEC, furnish to the Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall be subject to the review of, the Holder or group of Holders and filed for their respective counsel;review. (ib) Prepare and file with the Commission SEC such amendments, including post-effective amendments, amendments and prospectus supplements to the TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to and available for the resale of the Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary applicable period specified in order to register for resale under the Securities Act all of the Registrable Securities, (iii) Sections 2(c); cause any 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 (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) respond under the Securities Act; and use its commercially reasonable best efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented. (c) As promptly as reasonably possible practicable give notice to the Notice Holders (i) when any comments received from Prospectus, Prospectus supplement, Periodic Report, Registration Statement or post-effective amendment to a Registration Statement has been filed with the Commission SEC and, with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment theretoamendment, 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 when 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 same has been 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments request, following the effectiveness of a Registration Statement under the Securities Act by the Commission or any request by the Commission SEC or any other federal or state governmental authority or regulatory authority for amendments or supplements an amendment to the TZE any Registration Statement or the Prospectus or for additional information; a supplement to Prospectus, (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the TZE any Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, initiation of any proceedings for such purposes; that purpose, (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction or the initiation, or written threatened initiation, initiation of any 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 (iiiii) at to keep each such registration or qualification (or exemption therefrom) effective during the 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 time when 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 Prospectus relating to stop order suspending the TZE effectiveness of any Registration Statement is required or the initiation of proceedings with respect to be delivered pursuant to any Registration Statement under Section 8(d) or 8(e) of the Securities Act of Act, (B) the occurrence of any event or the existence of any fact (a “Material Event”) as a result of which the Prospectus included in such registration statement, as then in effect, includes an any Registration Statement shall contain any untrue statement of a material fact or omits 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 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 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 following such notification the related Prospectus for a period of time: (i) in the case of clause (B) above, subject to clause (ii) below, as promptly as practicable prepare and furnish file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the Holder related Prospectus or group of Holders a reasonable number of copies of a supplement to, or an amendment of, any other required document that would be incorporated by reference into such Registration Statement and Prospectus as may be necessary so that, as thereafter delivered to the purchasers of that such securities, such Prospectus shall Registration Statement does not contain an any 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, 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 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 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 Notice Holder’s receipt of copies of a supplemented or amended Prospectus, 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 reasonable 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(g) to suspend the availability of a Registration Statement or a Prospectus, without incurring or accruing any obligation to pay Liquidated Damages pursuant to Section 2(g), no more than one (1) time in any three month period or four (4) 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(g), not to exceed 30 days in any three month period or 60 days in any 360 day period. (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 each Notice Holder or group of Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities Registrable Securities sold or to be sold that are in pursuant to a form eligible for deposit with The Depository Trust Company and that do not bear any restrictive legendsRegistration Statement, and enable cause such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter such Notice Holder may request in writing at least two three (3) Business Days prior to any sale of securities in any underwritten offering that meets the requirements of Section 2.1(e);such Registrable Securities. (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 such securities registered hereunder to be listed on each securities exchange on which the same 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 Cooperate and customary provisions, (ii) if participating assist 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 AuthorityNew York Stock Exchange. Nothing in this Agreement shall be deemed to require the Company to facilitate or participate in any underwritten offering of any Registrable Securities by any Notice Holder or, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In in connection with any such underwritten offering meeting the requirements offering, to enter into any underwriting agreement or to provide any auditor’s “comfort letters” or any opinions of Section 2.1(e) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by counsel to any Holder, by the managing underwriter and by any attorney, accountant or other agent retained by any such Notice Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 2 contracts

Samples: Registration Rights Agreement (Leucadia National Corp), Registration Rights Agreement (Jefferies Group Inc /De/)

Registration Procedures. In connection with the case filing of each registration effected by the Company any Registration Statement pursuant to this Article IISection 2 or 3 hereof, the Company will use its reasonable best efforts to shall effect such registration registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable disposition thereof, and will keep the Holders advised on a reasonably current basis as to the initiation of each registration pursuant thereto and as to the completion thereof. At its expense, in connection with any Registration Statement filed by the Company will use its reasonable best efforts tohereunder the Company shall: (a) Prepare and file with the required TZE SEC prior to the Filing Date, a Registration Statement, including all exhibits and financial statements required pursuant use its best efforts to the Securities Act cause such Registration Statement to be filed therewithbecome effective and remain effective as provided herein; provided, and however, that, before filing such registration statement, any Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectus, the Company shall furnish to and afford the Holder or group Holders of Holders 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 prepared (including, if requested in writing, copies of any documents to be filedincorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five business days prior to such filing). The Company shall not file any Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority of shares of Registrable Securities covered by such Registration Statement, which documents their counsel, or the managing underwriters, if any, shall be subject reasonably object within two business days after the receipt thereof. Notwithstanding anything to the review ofcontrary contained in this Agreement, the Holder or group of Holders and their respective counsel;Company shall not be required to engage in more 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 TZE Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with ; cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)required by applicable law, and, and as so supplemented or amended, to be filed pursuant to Rule 424, 424 (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, similar provisions then in force) promulgated under the Securities Act; and (v) 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 TZE such Registration Statement during the applicable period as so amended or in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof such Prospectus as set forth in the TZE Registration Statementso supplemented. (c) Furnish to Notify the Holder or group selling Holders of Holders Registrable Securities, their counsel and each underwriterthe managing underwriters, if any, without chargereasonably promptly (but in any event within five business days), as many conformed copies as and confirm such Holder or group of Holders notice in writing, (i) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements , and, with respect to the TZE a Registration Statement or any post-effective amendment, when the Prospectus or for additional information; same has become effective under the Securities Act, (g) Promptly notify the Holder or group of Holders (iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 2 contracts

Samples: Registration Rights Agreement (Marquee Group Inc), Registration Rights Agreement (Marquee Group Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will use its reasonable best efforts shall: (a) Prepare and file with the Commission on or prior to effect the Filing Date, a Registration Statement on Form S-3 (or if the Company is not then eligible to register for resale the Registrable Securities on Form S-3 such registration to permit the sale of securities Registration Statement shall be on another appropriate form in accordance with the intended Securities Act and the rules and regulations promulgated thereunder) in accordance with the method or methods of distribution thereof as expeditiously as reasonably practicable described on Annex A hereto (except if otherwise directed by all of the Holders), 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:to cause the Registration Statement to become effective and remain effective as provided herein.  (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel; (ib) 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 (subject to Section 3.1(m)) as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities, (iii) ; cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, thereto and (v) promptly provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and 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 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) Furnish to At the time the Commission declares the Registration Statement effective, each Holder or group of Holders and each underwriter, if any, without charge, shall be named as many conformed copies as such Holder or group of Holders or any underwriter may reasonably request of a selling stockholder in the TZE Registration Statement and any amendment or post-effective amendment theretothe 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, 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 subject to the Prospectus, as the Holder or group of Holders may from time to time reasonably request; (e) On or prior to terms and conditions hereof. From and after the date on which the TZE 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 extent 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, register prepare and qualify file with the securities covered by such registration statement pursuant Commission a post-effective amendment to the securities Registration Statement or blue sky laws of each jurisdiction as shall be reasonably requested 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 or group 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 Holders; providedsuch Holder’s Registrable Securities included in the Shelf Registration Statement in accordance with applicable law and, however, that if 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 post-effective amendment to service of process 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 states or jurisdictions where it post-effective amendment is not then so subjectrequired by this clause to be filed; (fii) Notify 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 Holder 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 (i)(A) when a Registration Statement, a Prospectus or group any Prospectus supplement or pre- or post-effective amendment to the Registration Statement is filed; (B) when the Commission notifies the Company whether there will be a “review” of Holders 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 managing underwriter, if any, Company’s responses thereto and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documents, as soon as reasonably practicable after notice thereof is received Registration Statement or any post- effective amendment filed by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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; information of the Company; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities of the Company for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result 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 such Registration Statement, Prospectus or other documents so that, in the case of which such Registration Statement or the Prospectus included in such registration statementProspectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.  (e) Use reasonable best efforts to avoid the issuance of, and, if issued, 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.  (f) If requested by 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 such Holders reasonably 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. (g) Furnish to each Holder, without charge and upon request, one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and, to the extent requested by such Person, all documents incorporated or deemed to be incorporated therein by reference, and following all exhibits (including those previously furnished or incorporated by reference) promptly after the filing of such notification promptly prepare 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.  (h) Promptly deliver to each Holder, without charge, not more than five (5) copies of the Prospectus or Prospectuses (including each form of prospectus) and furnish each amendment or supplement thereto; and the Company hereby consents to the Holder use of such Prospectus and each amendment or group 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 to the extent permitted by federal and state securities laws and 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 reasonable number Registration Statement.  (j) Upon the occurrence of copies of any event contemplated by Section 3.1(d)(v), as promptly as practicable prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in the light of the circumstances under which they were made made, not misleading;.  (hk) 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 Use reasonable best efforts to cause all Registrable Securities 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 Registration Statement to be incorporated in such Prospectus supplement listed on the Nasdaq Stock Market, LLC or post-effective amendment; (j) Cooperate with the Holder any subsequent securities exchange, quotation system or group of Holders and the managing underwritermarket, 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 such securities registered hereunder to be listed on each securities exchange on which the same similar securities issued by the Company are then listed;listed or traded.  (l) 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 to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails to furnish such information within fifteen (15) days after receiving such request. (m) In If (i) there is material non-public information regarding the Company which 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, then the Company may postpone or suspend filing or effectiveness of a Registration Statement for a period (a “Deferral Period”) not to exceed forty-five (45) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3.1(m) for more than sixty (60) days in the aggregate during any consecutive 12-month period; provided, however, that no such postponement or suspension by the Company shall be permitted for more than one forty-five (45) 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 underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement such Holder requests in form reasonably writing and to do any and all other acts or things necessary or advisable to effect enable the offer and sale in such jurisdictions of such securitiesthe Registrable Securities covered by the Registration Statement; provided, provided however, that the Company shall not be required to (i) such underwriting agreement contains reasonable and customary provisions, qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) if participating in such underwriting, a Holder shall also enter into and perform its respective obligations pursuant take any action that would subject it to such agreement, (iii) if participating in such underwriting, the indemnification and contribution obligations general service of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery process or to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter taxation in any such underwritten offering and otherwise jurisdiction to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.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 case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: (i) Not less than four (4) Trading Days prior to the initiation filing of each registration and as a Registration Statement or any related Prospectus or any amendment or supplement thereto (other than any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant shall furnish to the Securities Act Holder and Holder Counsel copies of all such documents proposed to be filed therewith, and before filing shall reasonably consider any comments thereto from the Holder and Holder Counsel. The Company shall not file a Registration Statement or any such registration statement, Prospectus or any amendments or supplements thereto, or Prospectus, furnish thereto to the which Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object. (iii) (w) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each 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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiix) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (ivy) respond as promptly as reasonably possible promptly, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and as promptly as reasonably possible provide the 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 (vz) 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 Holder thereof as set forth in the TZE Registration StatementStatement as so amended or in such Prospectus as so supplemented. (ciii) Furnish Notify the Holder and Holder Counsel as promptly as reasonably possible, and (if requested by any such Person) confirm such notice in writing no later than one Trading Day thereafter, of any of the following events: (i) the Commission notifies the Company whether there will be a “review” of any Registration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to the Holder or group a copy of Holders such comments and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment all written responses 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 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 reasonably requested by the Holder or group of Holders; provided, however, that the Company shall will 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of any responses that would result in the relevant documents, as soon as reasonably practicable after notice thereof is received by disclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company, ); (iiii) when the TZE any Registration Statement, Statement or any post-effective amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filedis declared effective; and (iiiv) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority requests any amendment or regulatory authority for amendments or supplements supplement to the TZE any Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included or incorporated by reference in any time when a Prospectus relating to the TZE 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 to be delivered pursuant to the Securities Act of the occurrence of so that it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (iv) Use reasonable best efforts to avoid the issuance of or, and following such notification promptly prepare and furnish if issued, obtain the withdrawal of (i) any order suspending the effectiveness of 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, as soon as practicable. (v) Furnish or make available to the Holder and Holder Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements (but excluding schedules, all documents incorporated or group deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by the Holder or Holder Counsel), and such other documents, as the Holder or Holder Counsel may reasonably request, promptly after the filing of Holders a reasonable number of such documents with the Commission. (vi) Promptly deliver to the Holder and 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. Subject to Section 11(e), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by the Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (vii) (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 reasonable best efforts to register or qualify or cooperate with the Holder and 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 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. (ix) Cooperate with the Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Warrant, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as the Holder may request. (x) Upon the occurrence of any event described in clause (vii) of Section 11(b)(iii) of this Warrant, as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the affected Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 2 contracts

Samples: Warrant Agreement (Qumu Corp), Warrant Agreement (Qumu Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare and file with the required TZE Registration Statement, including all exhibits and financial statements required pursuant Commission on or prior to the Securities Act Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to be filed therewiththe 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 before 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 such registration statement, of the Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, or Prospectus, the Company shall (i) furnish to the Holder or group of Holders Special Counsel, copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated by reference) will be subject to the review ofof 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 group any such Prospectus or any amendments or supplements thereto to which the Holders of Holders and a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their respective counsel;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 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 PeriodPeriod 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, (ii) shall prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold and the Holder or group of Holders and each underwriter, if any, without charge, Special Counsel as many conformed copies promptly as such Holder or group of Holders possible (A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effectiveproposed 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 extent required by applicable lawRegistration Statement or any post-effective amendment, register and qualify when the securities covered by such registration statement pursuant same has become effective (which notice shall be delivered to the securities or blue sky laws of each jurisdiction Purchasers and Special Counsel on the same day as shall be 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; (f) Notify the Holder or group of Holders and the managing underwriter, if anyeffectiveness), and (if requested) confirm such advice in writing and provide copies of after the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, effectiveness thereof: (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) 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; ; (g) Promptly notify the Holder or group of Holders (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiiv) at any time when a Prospectus relating to if the TZE financial statements included in the Registration Statement is required to be delivered pursuant to the Securities Act become ineligible for inclusion therein or of the occurrence of any event as a result 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 which the Prospectus included in such registration statementRegistration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. 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 following such notification promptly prepare and furnish 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 or group of Holders a reasonable number of 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 toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 Cause all Registrable Securities registered pursuant relating to the TZE such Registration Statement and a CUSIP number for all such securitiesto be listed on the New York Stock Exchange, in each case not later than the effective date of such registration;American Stock Exchange or the Nasdaq Stock Market. (l) Cause Comply in all such securities registered hereunder to be listed on each securities exchange on which the same securities issued by the Company are then listed; (m) In connection material respects 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 all applicable rules 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date regulations of the closing pursuant to the underwriting agreement, in customary form, scope Commission and 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 make generally available to its security holders, as soon as reasonably practicable, an holders earnings statement statements satisfying the provisions of Section 11(a) of the Securities Act; Act and Rule 158 not later than 45 days after the end of any 3-month period (ror 90 days after the end of any 12-month period if such period is a fiscal year) In connection with any underwritten offering meeting 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 Section 2.1(eRule 158. (m) make available upon reasonable notice at reasonable times Request each selling Holder to furnish to the Company information regarding such Holder and for reasonable periods for inspection the distribution of such Registrable Securities as is required by a representative appointed by any Holderlaw or the Commission to be disclosed in the Registration Statement, by and the managing underwriter and by any attorney, accountant or other agent retained by 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 such underwriter, all pertinent financial and other records, corporate documents and properties Holder by name or otherwise as the holder of any securities of the Company, and cause all 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 Company’s officersreference 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, directors and employees and upon receipt of a notice from the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business 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 and 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 supply all information reasonably requested be incorporated by any reference in such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to Prospectus or Registration Statement. (n) If (i) there is material non-public information regarding the Company pursuant which the Company’s Board of Directors (the “Board”) reasonably determines not to this Section 2.4(rbe in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) shall agree 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 hold such information the Company which the Board reasonably determines not to be in strict confidence the Company’s best interest to disclose and shall 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 make any disclosure or use any such information to exceed 30 consecutive days, provided that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (imay not postpone or suspend its obligation under this Section 3(n) the release of such information is required by law; (ii) such information is or becomes publicly known other for more than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate 60 days in the customary aggregate during any 12 month period (each, a road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoBlackout Period”).

Appears in 2 contracts

Samples: Investor Rights Agreement, Investor Rights Agreement (LOCAL Corp)

Registration Procedures. In the case of each registration effected by the Company pursuant to this Article II, the Company will use its reasonable best efforts to effect such registration to permit the sale of securities in accordance connection 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 Company’s registration and as to the completion thereof. At its expense, the Company will use its reasonable best efforts to:obligations under this Agreement; (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Each Holder agrees to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared Company a completed questionnaire in the form attached to be filed, which documents shall be subject this Agreement as Annex B (a “Selling Stockholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the review of, Filing Date or by the end of the fourth (4th) Trading Day following the date on which such Holder or group of Holders and their respective counsel;receives a request for Annex B from the Company. (i) Prepare The Company shall prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE 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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, Securities 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; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, amendment; and (viv) 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 TZE 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 Holder or group 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 (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to the extent required by applicable law, register and qualify the securities covered by such be filed (but not including (i) any Exchange Act filing or (ii) any supplement or post-effective amendment to a registration statement pursuant that is not related to such Holder’s Registrable Securities), (B) when the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Commission notifies the Company shall not whether there will be required a “review” of such Registration Statement and whenever the Commission comments 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 writing on such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if anyRegistration Statement, and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statementsame has become effective, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE a Registration Statement or the Prospectus or for additional information; , (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or of any stop order suspending the use effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any preliminary or final Prospectus or the initiationProceedings for that purpose, or written threatened initiation, of any proceedings for such purposes; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and , (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and following (vi) of 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 in no event shall any such notification promptly prepare and notice contain any information which would constitute material, non-public information regarding the Company or any of its Subsidiaries. (e) The Company shall use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a 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. (f) The Company shall furnish to each Holder, 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) 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(d). (h) If requested by a Holder, the Company shall cooperate with such Holder or group to facilitate the timely preparation and delivery of Holders certificates representing Registrable Securities to be delivered to a reasonable number transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Share Purchase Agreement, of copies 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. (i) Upon the occurrence of any event contemplated by Section 3(d), as promptly as reasonably 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 toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hiii) Prevent or obtain the withdrawal through (vi) of any stop order or other order suspending Section 3(d) above to suspend the use of any preliminary or final Prospectus; (i) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as until the managing underwriter and the Holder or group of Holders agree should be included therein relating to the plan of distribution with respect requisite changes to such securitiesProspectus have been made, and make all required filings then the Holders shall suspend use of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified Prospectus. The Company will use its reasonable best efforts to ensure that the use of the matters 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 incorporated consecutive days) in such Prospectus supplement or postany 12-effective amendment;month period. (j) Cooperate The Company shall comply with all applicable rules and regulations of the Commission in connection with obtaining and maintaining the effectiveness of any Registration Statement required to be filed and maintained 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);Commission under this Agreement. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each selling Holder 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter Commission, the natural persons thereof that have voting and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of dispositive control over the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.shares

Appears in 2 contracts

Samples: Registration Rights Agreement (SurePure, Inc.), Registration Rights Agreement (SurePure, Inc.)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of each Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statementthe Company shall, or any amendments or supplements thereto, or Prospectus, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 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 shall reasonably and in good faith object, provided, the Holder or group Company is notified of such objection in writing no later than 3 Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 Holder or group 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 (which notice shall, pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 the Registration Statement or Prospectus; provided that any 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 Holders make no acknowledgement that any such information is material, non-public information. (e) Promptly deliver to each Holder, 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. 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. (f) Use commercially reasonable efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (g) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (h) Upon the occurrence of any event contemplated by this Section 3, as promptly prepare and furnish as reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Holder or group Company and its stockholders of Holders a reasonable number the premature disclosure of copies of such event, prepare a supplement toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made 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. (hi) Prevent or Comply with all applicable rules and regulations of the Commission. (j) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) 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 Registrable Securities 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 jurisdiction, at the requirements of Section 2.1(e);earliest practicable moment. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require, at any time prior 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant third Trading Day prior to the underwriting agreementFiling Date, in customary form, scope and substance, which opinion shall be reasonably satisfactory each Holder 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 furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if requested by the Commission and the managing underwriterHolder is not an individual, with copies to any Holder or group of Holdersthe controlling person thereof, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all within three Trading days of the Company’s officers, directors and employees and request. During any periods that the independent public accountants who have certified 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 financial statements request, any partial liquidated damages that are accruing as to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any Holders at such Person in connection with such disposition as time shall be necessary tolled and any Event that may otherwise occur as to enable them to exercise their due diligence responsibilitysuch Holder solely because of such delay shall be suspended, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 2 contracts

Samples: Securities Purchase Agreement (World Health Alternatives Inc), Registration Rights Agreement (World Health Alternatives Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will use its reasonable best efforts shall: (a) Prepare and file with the Commission on or prior to effect the Filing Date, (including by the amendment or supplement of an existing automatic shelf registration statement) a Registration Statement on Form S-3 (or if the Company is not then eligible to register for resale the Registrable Securities on Form S-3 such registration to permit the sale of securities Registration Statement shall be on another appropriate form in accordance with the intended Securities Act and the rules and regulations promulgated thereunder) in accordance with the method or methods of distribution thereof as expeditiously as reasonably practicable described on Annex A hereto (except if otherwise directed by all of the Holders) , 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:to cause the Registration Statement to become effective and remain effective as provided herein. (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel; (ib) 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 (subject to Section 3.1(m)) as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities, (iii) ; cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, thereto and (v) promptly provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish to At the Holder time the Commission declares the Registration Statement effective or group of Holders and each underwriter, if any, without chargeat the time an ASR Pro Supp is filed, as many conformed copies applicable, each Holder shall be named as such Holder or group of Holders or any underwriter may reasonably request of a selling stockholder in the TZE 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 amendment 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 theretoto the Registration Statement or prepare and, including financial statements and schedulesif required by applicable law, all documents 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 all exhibits 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 (including those incorporated 60) days after the date such post-effective amendment is required by referencethis 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) FurnishPromptly notify the Holders of Registrable Securities (i)(A) when a Registration Statement, without charge, such number of Prospectuses, including a Prospectus or any preliminary Prospectuses, and other documents incident thereto, including any Prospectus supplement or pre- or post-effective 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 declared effectivefiled; (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 extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the securities Registration Statement or blue sky laws of each jurisdiction as shall be 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received post-effective amendment filed by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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; information of the Company; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities of the Company for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result 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 such Registration Statement, Prospectus or other documents so that, in the case of which such Registration Statement or the Prospectus included in such registration statementProspectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (e) Use reasonable best efforts to avoid the issuance of, and, if issued, 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. (f) If requested by 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 such Holders reasonably 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. (g) Furnish to each Holder, without charge and upon request, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and, to the extent requested by such Person, all documents incorporated or deemed to be incorporated therein by reference, and following all exhibits (including those previously furnished or incorporated by reference) promptly after the filing of such notification promptly prepare 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. (h) Promptly deliver to each Holder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and furnish each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the Holder use of such Prospectus and each amendment or group 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 to the extent permitted by federal and state securities laws and 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 reasonable number Registration Statement. (j) Upon the occurrence of copies of any event contemplated by Section 3.1(d)(v), as promptly as practicable prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in the light of the circumstances under which they were made made, not misleading;. (hk) 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 Use reasonable best efforts to cause all Registrable Securities 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 Registration Statement to be incorporated in such Prospectus supplement listed on the Nasdaq Stock Market, LLC or post-effective amendment; (j) Cooperate with the Holder any subsequent securities exchange, quotation system or group of Holders and the managing underwritermarket, 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 such securities registered hereunder to be listed on each securities exchange on which the same similar securities issued by the Company are then listed;listed or traded. (l) 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 to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails to furnish such information within fifteen (15) days after receiving such request. (m) In If (i) there is material non-public information regarding the Company which 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, then the Company may postpone or suspend filing or effectiveness of a Registration Statement for a period (a “Deferral Period”) not to exceed sixty (60) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3.1(m) for more than ninety (90) days in the aggregate during any 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 underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement such Holder requests in form reasonably writing and to do any and all other acts or things necessary or advisable to effect enable the offer and sale in such jurisdictions of such securitiesthe Registrable Securities covered by the Registration Statement; provided, provided however, that the Company shall not be required to (i) such underwriting agreement contains reasonable and customary provisions, qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) if participating take any action that would subject it to general service of process or to taxation in such underwriting, a Holder shall also enter into and perform its respective obligations pursuant any jurisdiction to such agreement, (iii) if participating in such underwriting, the indemnification and contribution obligations of such Holder shall be several and which it is not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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;then so subject. (o) In connection The Company will comply with any underwritten offering meeting all rules and regulations of the requirements of Section 2.1(e) pursuant Commission to the TZE Registration Statement, obtain for delivery extent and so long as they are applicable to the Company Registration 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 will make generally available to its security holders, as soon as reasonably practicable, 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; Act and Rule 158 thereunder, no later than 45 days after the end of a 12-month period (ror 90 days, if such period is a fiscal year) In connection beginning with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and first fiscal quarter commencing after the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business effective date of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoRegistration Statement.

Appears in 2 contracts

Samples: Registration Rights Agreement (Ziopharm Oncology Inc), Registration Rights Agreement (Ziopharm Oncology Inc)

Registration Procedures. In connection with the case Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of each registration effected by the Company Registrable Securities have requested that any Registrable Securities be registered pursuant to this Article IIAgreement or have initiated a takedown offering, the Company will Pubco shall use its reasonable best efforts to effect such the registration to permit and the sale of securities such Registrable Securities in accordance with the intended method or methods of distribution thereof disposition thereof, and pursuant thereto Pubco shall as expeditiously as reasonably practicable possible: (a) prepare in accordance with the Securities Act and will keep all applicable rules and regulations promulgated thereunder and file with the Holders advised on Commission a reasonably current basis registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to the initiation of each registration comply with applicable securities laws, with respect to such Registrable Securities and as to the completion thereof. At its expense, the Company will use its reasonable best efforts to: to cause such registration statement to become effective (aprovided that at least five (5) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and Business Days before filing such a registration statement, statement or prospectus or any amendments or supplements thereto, or Prospectus, Pubco shall furnish to counsel selected by the Holder or group of Holders Applicable Approving Party copies of all such documents prepared proposed to be filed, which documents shall be subject to the review of, the Holder or group and comment of Holders and their respective such 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 Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any 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); (db) Furnish, without charge, such number notify each holder of Prospectuses, including any preliminary Prospectuses, and other documents incident thereto, including any amendment Registrable Securities of or supplement to the Prospectus, as the Holder or group of Holders may from time to time reasonably request; (eA) On or prior to the date on which the TZE Registration Statement is 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus registration statement or the initiation, or written threatened initiation, initiation of any proceedings for such purposes; that purpose, (iiB) of the receipt by the Company Pubco or its counsel of any notification with respect to the suspension of the qualification of the securities so registered Registrable Securities for offering or sale in any jurisdiction or the initiation, initiation or written threatened initiation, threatening of any proceeding for such purpose; , and (C) 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 opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement; (d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller; (e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act; (f) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that Pubco shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 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 prospectus relating to the TZE Registration Statement thereto is required to be delivered pursuant to under the Securities Act Act, of the occurrence happening of any event as a result of which the Prospectus prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state a material any fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and following and, at the request of any such notification seller, Pubco promptly prepare shall prepare, file with the Commission and furnish to the Holder or group of Holders each such seller a reasonable number of copies of a supplement to, or an amendment of, to such Prospectus as may be necessary prospectus so that, as thereafter delivered to the purchasers of such securitiesRegistrable Securities, such Prospectus prospectus shall not contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or 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 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 underwriters, 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 underwriters managing such offering may reasonably request); (k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of 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 a material fact necessary to make the statements therein, in light of the circumstances under which they were made made, not misleading; (hm) Prevent otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission; (n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of Pubco to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to Pubco in writing, which in the reasonable judgment of such holder and its counsel should be included; (o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such registration statement for sale in any jurisdiction, Pubco shall use its reasonable best efforts promptly to obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectussuch order; (ip) Promptly incorporate in a Prospectus supplement use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or post-effective amendment approved by such information other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities; (q) cooperate with the holders of Registrable Securities covered by the registration statement and 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 underwriteragent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) 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, under the registration statement 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 underwriteragent, if any, or such holders may request; (r) cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such securities Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.FINRA; (qs) Make available if such registration includes an underwritten public offering, use its reasonable best efforts to its security holdersobtain a cold comfort letter from Pubco’s independent public accountants and addressed to the underwriters, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) in customary form and covering such matters of the Securities Acttype customarily covered by cold comfort letters as the underwriters in such registration reasonably request; (rt) In connection with any provide a legal opinion of Pubco’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten offering meeting Public Offering, dated the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties date of the Companyclosing under the underwriting agreement), and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such information 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 Holder underwriters; (u) if Pubco files an Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is aware; 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 (iv) such information is independently developed by such Persontimes as the Registrable Securities are to be sold; and (sw) In connection with any underwritten offering meeting subject to the requirements terms of Section 2.1(e2(c) and Section 2(d), cause if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the senior executive officers end of the Company third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when Pubco is required to participate in re-evaluate its WKSI status Pubco determines that it is not a WKSI, use its reasonable best efforts to refile the customary “road show” presentations that may registration statement on Form S-3 and keep such registration statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such registration statement is required to be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretokept effective.

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 Promptly after Grantee's request for registration hereunder, Diana shall: (a) Prepare and file with the case of each registration effected by Commission the Company pursuant to this Article IIRegistration Statement, the Company will and use its reasonable best efforts to effect cause such registration Registration Statement to permit the sale of securities become and remain effective all as set forth 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 financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counselparagraph 1; (ib) Prepare and file with the Commission such amendments, including post-effective amendments, amendments to the TZE such Registration Statement and supplements to the Prospectus used in connection therewith prospectus contained therein as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements such period as may be reasonably necessary in order to register for resale under effect the Securities Act all sale of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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.such securities; (c) 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 Holders or any 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)[Reserved]; (d) Furnish, without charge, such number of Prospectuses, including any preliminary Prospectuses, and other documents incident thereto, including any amendment of Use its best efforts to register 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 declared effective, to the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the Registration Statement under such state securities or blue sky laws of each jurisdiction such jurisdictions as shall be Grantee may reasonably requested by the Holder or group of Holders; provided, however, request in writing except that the Company Diana shall not xxx any purpose be required in connection therewith to execute a general consent to service or as a condition thereto process or to qualify to do business or to file as a general consent to service of process foreign corporation in any such states or jurisdictions where jurisdiction wherein it is not then so subjectqualified; (e) Notify Grantee promptly after it shall receive notice thereof, of the time when such Registration Statement has become effective or a supplement to any prospectus forming a part of such Registration Statement has been filed; (f) Notify the Holder or group Grantee promptly of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission for the amending or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE supplementing of such Registration Statement or the Prospectus prospectus or for additional information; (g) Promptly notify Prepare and file with the Holder Commission, promptly upon the request of Grantee, any amendments or group of Holders (i) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE supplements to such Registration Statement or prospectus which, in the opinion of counsel for Grantee, is required under the Securities Act or the rules and regulations thereunder in connection with the distribution of the Diana Shares of Xxxxtee, including any order 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 or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) and promptly notify Grantee of the receipt by filing of such amendment or supplement to such Registration Statement or prospectus as may be necessary to correct any statements or omissions if, at the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus prospectus relating to the TZE Registration Statement such securities is required to be delivered pursuant to under the Securities Act of the occurrence of Act, any event shall have occurred as a the result of which the Prospectus included in any such registration statement, prospectus or any other prospectus as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus shall not contain effect would include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under in which they were made made, not misleading; (hi) Prevent Advise Grantee promptly after it shall receive notice or obtain knowledge thereof, of the withdrawal issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for that purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or other to obtain its withdrawal if such stop 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 amendmentissued; (j) Cooperate Not file any amendment or supplement to such Registration Statement or prospectus to which Grantee shall have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects 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 the Securities Act or the rules and regulations thereunder, after having been furnished with a transfer agent and registrar for all Securities registered pursuant copy thereof at least five business days prior to the TZE Registration Statement and a CUSIP number filing thereof, unless in the opinion of counsel for all Diana the filinx xx 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 same 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 amendment or supplement is reasonably necessary to effect the offer protect Diana from any xxxxxlities under any applicable federal or state law 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 indemnification and contribution obligations of such Holder shall be several and filing will not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by violate applicable law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 2 contracts

Samples: Stock Option Agreement (Diana Corp), Stock Option Agreement (Diana Corp)

Registration Procedures. In connection with the case registration obligations of each registration effected by the Company pursuant to this Article IIunder Section 2 hereof, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and A reasonable time before filing such registration statement, any Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectusthereto with the SEC, furnish to counsel to the Holder or group of Holders Initial Purchasers copies of all such documents prepared proposed to be filed, which documents shall 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, Initial Purchasers reasonably shall propose within five (5) Business Days of the Holder or group delivery of Holders and their respective counsel;such copies to the Initial Purchasers. (ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with applicable period specified in Section 2(a); cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) respond under the Securities Act; and use its reasonable efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented. (c) As promptly as reasonably possible practicable give notice to counsel to the Notice Holders and the Initial Purchasers (i) when any comments received from Prospectus, Prospectus supplement, Registration Statement or post-effective amendment to a Registration Statement has been filed with the Commission SEC and, with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment theretoamendment, 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 when 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 same has been 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the Commission or any request by the Commission SEC or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE any Registration Statement or the related Prospectus or for additional information; , (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the TZE any Registration Statement or any order by the Commission initiation or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, threatening of any proceedings for such purposes; that purpose, (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction or the initiation, initiation or written threatened initiation, threatening of any proceeding for such purpose; and , (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as (but not the nature of or details concerning) a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein in light Material Event and (vi) of the circumstances under determination by the Company that a post-effective amendment to a Registration Statement will be filed with the SEC, which they were madenotice may, not misleading, and following such notification promptly prepare and furnish to at the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light discretion of the circumstances under Company (or as required pursuant to Section 3(i)), state that it constitutes a Deferral Notice, in which they were made not misleading;event the provisions of Section 3(i) shall apply. (hd) Prevent or Use reasonable efforts to obtain the withdrawal of any stop order or other order suspending the use effectiveness of a Registration Statement or the lifting of any preliminary suspension of the qualification (or final Prospectus;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. (ie) Promptly If reasonably requested by any Initial Purchaser 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 managing underwriter and Initial Purchaser or such Notice Holder shall, on the Holder or group basis of Holders agree should be included therein relating to the plan a written opinion of distribution with respect to such securities, and make all required filings of such Prospectus supplement or postnationally-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated recognized counsel experienced 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.matters,

Appears in 2 contracts

Samples: Registration Rights Agreement (Atmel Corp), Registration Rights Agreement (Atmel Corp)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than ten Business Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of the Registration Statement or any amendments related Prospectus or supplements theretoany amendment or supplement thereto (including any document that would be incorporated therein by reference), or Prospectus, the Company shall (i) furnish to the Holder or group of Holders and any Special Counsel, copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated by reference) will be subject to the review of, the Holder or group of such Holders and such Special Counsel, 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 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 any Special Counsel, shall reasonably object in writing within three Business Days of their respective counsel;receipt thereof. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold and any Special Counsel as promptly as possible (and, in the Holder or group case of Holders (i)(A) below, not less than five days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Business Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed 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 reasonably requested by the Holder or group of Holdersfiled; 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (iB) when the TZE Commission notifies the Company whether there will be a "review" of such Registration Statement, Statement and whenever the Commission comments in writing on such Registration Statement and (C) with respect to the Registration Statement or any amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) 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; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiivi) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result 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 which the Prospectus included in such registration statementRegistration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (d) Use its best efforts to avoid the issuance of, or, if issued, 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 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. (f) Furnish to each Holder and 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 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, and following any Special Counsel in connection with the registration or qualification (or exemption from such notification 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 of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holders may request at least two Business Days prior to any sale of Registrable Securities. (j) Upon the occurrence of any event contemplated by Section 3(c)(vi), as promptly as possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in the light of the circumstances under which they were made made, not misleading;. (hk) 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 Use its best efforts to cause all Registrable Securities 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 Registration Statement to be incorporated in such Prospectus supplement eligible for quotation on the National Association of Securities Dealers, Inc.'s OTC Bulletin Board (the "OTC Bulletin Board") and any other securities exchange, quotation system, market or postover-effective amendment; (j) Cooperate with the Holder or group of Holders and the managing underwriterthe-counter bulletin board, 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 such securities registered hereunder to be listed on each securities exchange on which the same similar 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 listed as 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing when required pursuant to the underwriting agreement, in customary form, scope and 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;Purchase Agreement. (ol) In connection Comply in all material respects with any underwritten offering meeting the requirements of Section 2.1(e) pursuant to the TZE Registration Statement, obtain for delivery to the Company all applicable rules 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 regulations of the type customarily covered by “cold comfort” letters as the managing underwriter reasonably requests, dated the date of execution of the underwriting agreement Commission 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 make generally available to its security holders, as soon as reasonably practicable, an earnings statement holders earning statements satisfying the provisions of Section 11(a) of the Securities Act; Act and Rule 158 not later than 45 days after the end of any 12-month period (ror 90 days after the end of any 12-month period if such period is a fiscal year) In connection with any underwritten offering meeting 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 Section 2.1(eRule 158. (m) make available upon reasonable notice at reasonable times The Company may require each selling Holder to furnish to the Company information regarding such Holder and for reasonable periods for inspection the distribution of such Registrable Securities as is required by a representative appointed by any Holderlaw to be disclosed in the Registration Statement, by and the managing underwriter and by any attorney, accountant or other agent retained by Company may exclude from such registration the Registrable Securities of any such Holder who unreasonably fails to furnish such information within 15 Business Days after receiving such request. If the Registration Statement refers to any Holder by name or otherwise as the holder of any such underwriter, all pertinent financial and other records, corporate documents and properties securities of the Company, and cause all then such Holder 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 Company’s 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. The 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 3(g) and notice from the Company that such Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(c) and (ii) it and its officers, directors and employees and or Affiliates, if any, will comply with the independent prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Registrable Securities pursuant to the Registration Statement. (n) If (i) there is material non-public accountants who have certified information regarding the Company which the Company’s financial statements 's Board of Directors (the "Board") reasonably determines not to make themselves 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 discuss the business Company which the Board reasonably determines not to be in the Company's best interest to disclose, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 15 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 30 days in the aggregate during any 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. (o) 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 reasonable belief that the registration statement will be deemed effective in the appropriate time period, and to supply all information reasonably requested by further that it is not in any such Person way violating any covenants with other investors in connection with such disposition as shall be necessary registration statement by adding the Registrable Shares to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretosaid registration statement.

Appears in 1 contract

Samples: Registration Rights Agreement (World Wide Wireless Communications Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare Not less than four Trading Days prior to the required TZE filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall furnish to each Holder and Legal Counsel copies of the “Selling Stockholders” section of such 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 will be subject to the review of such Holder and Legal Counsel The Company shall not file a Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, any Prospectus or any amendments or supplements thereto, thereto in which the “Selling Stockholder” section thereof differs in any material respect from the disclosure received from a Holder in its Selling Holder Questionnaire (as amended or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;supplemented). (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a each Registration Statement or any amendment theretothereto 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 disclosure to the Holders of material and non-public information concerning the Company; and (viv) 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 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 each Registration Statement. (c) Furnish Notify the Holders and Legal Counsel as promptly as reasonably possible (and, 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 Holder or group of Holders financial statements in any Registration Statement becoming ineligible for inclusion therein) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a condition thereto to qualify to do business Selling Stockholder or to file a general consent to service the Plan of process in any such states or jurisdictions where it is Distribution, but not then so subject; (f) Notify information which the Holder or group of Holders Company believes would constitute material and the managing underwriter, if any, non-public information); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to each Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in such registration statementRegistration 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 such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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) Furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Person (including those previously furnished) promptly after the filing of such documents with the Commission. (f) Promptly deliver to each Holder, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. 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. (g) Prior to any public offering of Registrable Securities, register or qualify such Registrable Securities for offer and sale under the securities or Blue Sky laws of all jurisdictions within the United States, 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 the Registration Statements; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject 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. (h) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder affected Registration Statements or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, such no Registration Statement nor any Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading;. (hj) Prevent or obtain The Company may require each selling Holder to furnish to the withdrawal 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. During any stop order or other order suspending 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 of any preliminary or final Prospectus; its best efforts either to (i) Promptly 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 is then permitted under the rules of such exchange, or (ii) secure designation and quotation of all the Registrable Securities covered by a 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. (“NASD”) as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(k). (l) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriter and the Holder or group of Holders agree should an Investor reasonably requests to be included therein relating to the plan sale and distribution of distribution 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 securities, and offering; (ii) as soon as practicable make all required filings of such Prospectus prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with supplement or make amendments to any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information Registration Statement if reasonably requested by a Holder holding any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoRegistrable Securities.

Appears in 1 contract

Samples: Registration Rights Agreement (Microfield Group Inc)

Registration Procedures. In connection with Borrower Representative’s registration obligations hereunder, Borrower Representative shall: 2.1 Prepare and file with the case of each registration effected by SEC on or prior to the Company pursuant Filing Date, a Registration Statement on Form S-3 (or if Borrower Representative is not then eligible to this Article II, register for resale the Company will use its reasonable best efforts to effect Registrable Securities on Form S-3 such registration to permit the sale of securities shall be on another appropriate form in accordance with the intended Securities Act and the rules and regulations promulgated thereunder) in accordance with the method or methods of distribution thereof as expeditiously as reasonably practicable and will keep the Holders advised described 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: Annex A hereto (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewithexcept if otherwise directed by Administrative Agent), and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish use commercially reasonable efforts to cause the Holder or group of Holders copies of all documents prepared Registration Statement to be filed, which documents shall be subject to the review of, the Holder or group of Holders become effective and their respective counsel;remain effective as provided herein. (i) Prepare and file with the Commission SEC 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 (subject to Section 2.12) as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any SEC such additional registration statements as may be necessary Registration Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible to any comments received from the Commission SEC with respect to a the Registration Statement or any amendment thereto, thereto and promptly provide the Holders true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. 2.3 Promptly notify the Holders of Registrable Securities (ci)(A) 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 Holders when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 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 reasonably requested by the Holder or group of Holdersfiled; 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (iB) when the TZE SEC notifies Borrower Representative whether there will be a “review” of such Registration Statement and whenever the 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 amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) of any written comments by the Commission or any request by the Commission SEC 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; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result 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 which the Prospectus included in such registration statementRegistration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. 2.4 Use commercially reasonable efforts to avoid the issuance of, or, if issued, 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. 2.5 If requested by the Administrative Agent on behalf of Designated Holders, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as 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 Borrower Representative has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment. 2.6 Furnish to each Holder, without charge and upon request, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and, to the extent requested by such Person, all documents incorporated or deemed to be incorporated therein by reference, and following all exhibits (including those previously furnished or incorporated by reference) promptly after the filing of such notification documents with the SEC. 2.7 Promptly deliver to each Holder, 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 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. 2.8 Prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the 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, Borrower Representative shall in no event be required to (x) qualify to do business in any state where it is not then qualified or (y) take any action that would subject it to tax or to the general service of process in any such state where it is not then subject, or (z) comply with state securities or “blue sky” laws of any state for which registration by coordination is unavailable to Borrower Representative. 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. 2.10 Upon the occurrence of any event contemplated by Section 2.3(v), promptly prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in the light of the circumstances under which they were made made, not misleading;. (h) Prevent 2.11 Use commercially reasonable efforts to cause all Registrable Securities relating to the Registration Statement to be listed on the Nasdaq Stock Market or obtain 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 thethis Section 2.11 shall require BorrowBorrower Representative to continue to list its Common Stock on the withdrawal Nasdaq Stock Market and be a reporting company pursuant to Section 13 of the Exchange Act. 2.12 Borrower Representative may require each selling Holder to furnish to Borrower Representative information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, and Borrower Representative may exclude from such registration the Registrable Securities of any stop order such Holder who fails 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 other order suspending 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) it and its officers, directors or Affiliates, if any, 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 agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from Borrower Representative of the occurrence of any event of the kind described in Sections 2.3(ii), (iii), (iv), (v) or 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 2.10, or until it is advised in writing by Borrower Representative that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any preliminary additional or final Prospectus;supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. 2.13 If (i) Promptly incorporate there is material non-public information regarding Borrower Representative which the Board reasonably determines not to be in Borrower Representative’s best interest to disclose and which Borrower Representative is not otherwise required to disclose, or (ii) there is a Prospectus supplement significant business opportunity (including, but not limited to, the acquisition or post-effective amendment disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to Borrower Representative which the Board reasonably determines not to be in Borrower Representative’s best interest to disclose, then Borrower Representative may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed thirty (30) consecutive days, provided that Borrower Representative may not postpone or suspend its obligation under this Section 2.13 for more than sixty (60) days in the aggregate during any 12 month period; provided, however, that no such information postponement or suspension shall be permitted for consecutive thirty (30) 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 certificate evidencing the managing underwriter Registrable Securities, and the Holder or group of Holders agree should be included therein relating to the plan of distribution 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 make other legends. 2.15 If a Registration Statement is not effective with respect to all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters 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 incorporated included therein (excluding any Registrable Securities previously included in such Prospectus supplement a Registration Statement). This requirement does not apply to Company registrations on Form S-4 or post-effective amendment; S-8 or their equivalents (j) Cooperate with the Holder or group of Holders and the managing underwriter, if any, relating to facilitate the timely preparation and delivery of certificates representing equity securities to be sold 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 are in a form eligible for deposit with The Depository Trust Company and that would otherwise not permit the registration of re-sales of previously issued securities, or to the extent the Conversion Shares do not bear any restrictive legendsconstitute Registrable Securities. In that event, and enable such securities to 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 denominations and registered in underwriter(s)’ judgment, 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 such securities registered hereunder to limitation would be listed on each securities exchange on which the same 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 an orderly public distribution, then Borrower Representative shall include in such securities, provided that registration (i) such underwriting agreement contains reasonable first, the securities Borrower Representative proposes to sell, 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 underwritingsecond, the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoRegistrable Securities.

Appears in 1 contract

Samples: Loan and Security Agreement (Surface Oncology, Inc.)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of each Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statementthe Company shall, or any amendments or supplements thereto, or Prospectus, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 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 shall reasonably and in good faith object, provided, the Holder or group Company is notified of such objection in writing no later than 3 Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 Holder or group 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 (which notice shall, pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 the Registration Statement or Prospectus; provided that any 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 Holders make no acknowledgement that any such information is material, non-public information. (e) Promptly deliver to each Holder, 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. 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. (f) Use commercially reasonable efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (g) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (h) Upon the occurrence of any event contemplated by this Section 3, as promptly prepare and furnish as reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Holder or group Company and its stockholders of Holders a reasonable number the premature disclosure of copies of such event, prepare a supplement toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made 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. (hi) Prevent or Comply with all applicable rules and regulations of the Commission. (j) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) 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 Registrable Securities 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 jurisdiction, at the requirements of Section 2.1(e);earliest practicable moment. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require, at any time prior to the TZE Registration Statement third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if requested by the Commission and a CUSIP number for all the Holder is not an individual, the controlling person thereof, within three Trading days of the Company’s request. 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 securitiesinformation within three Trading Days of the Company’s request, in each case not later than any partial liquidated damages that are accruing as to the effective date Holders at such time shall be tolled and any Event that may otherwise occur as to such Holder solely because of such registration;delay shall be suspended, until such information is delivered to the Company. (l) Cause all such securities registered hereunder If NASDR Rule 2710 requires any broker-dealer to be listed on each securities exchange on which make a filing prior to executing a sale by a Holder, make an Issuer Filing with the same securities issued by the Company are then listed; (m) In connection with any underwritten offering meeting the requirements of Section 2.1(e)NASDR, 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 Inc. Corporate Financing Department pursuant to such agreement, (iiiNASDR Rule 2710(b)(10)(A)(i) if participating and respond within five Trading Days to any comments received from NASDR in such underwriting, the indemnification and contribution obligations of such Holder shall be several and not jointconnection therewith, and (iv) if participating in such underwriting, pay the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 filing fee required in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretotherewith.

Appears in 1 contract

Samples: Registration Rights Agreement (World Health Alternatives Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than 5 Trading Days prior to the Securities Act filing of each Registration Statement and not less than one 1 Trading Day prior to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 each Holder or group to conduct a reasonable investigation within the meaning of Holders and their respective counsel;the Securities Act. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that the 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 (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 Holder or group 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 (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than 1 Trading Day prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed 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 reasonably requested by the Holder or group of Holdersfiled; 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (iB) when the TZE 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 a Registration Statement or any amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) of any written comments request by the Commission or any request other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 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 Holders make no acknowledgement that any such information is material, non-public information. (e) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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. (f) If requested by a Holder, furnish to such Holder, 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 following such notification promptly prepare and furnish 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 website. (g) 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(d). (h) [Reserved]. (i) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or group Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (j) 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 reasonable number transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of copies all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (k) Upon the occurrence of any event contemplated by this Section 3, as promptly as reasonably 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 toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hiii) Prevent or obtain the withdrawal through (vi) of any stop order or other order suspending Section 3(d) above to suspend the use of any preliminary or final Prospectus; (i) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as until the managing underwriter and the Holder or group of Holders agree should be included therein relating to the plan of distribution with respect requisite changes to such securitiesProspectus have been made, and make all required filings then the Holders shall suspend use of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified Prospectus. The Company will use its best efforts to ensure that the use of the matters Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to be incorporated in such Prospectus supplement or post-effective amendment; (jexercise its right under this Section 3(k) Cooperate with to suspend the Holder or group availability 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 Prospectus, subject to the payment of partial liquidated damages pursuant to Section 2(b), for a CUSIP number for all such securities, period not to exceed 60 calendar days (which need not be consecutive days) in each case not later than the effective date of such registration;any 12 month period. (l) Cause Comply with all such securities registered hereunder to be listed on each securities exchange on which applicable rules and regulations of the same securities issued by the Company are then listed;Commission. (m) In connection with any underwritten offering meeting The Company may require each selling Holder to furnish to the requirements Company a certified statement as to the number of Section 2.1(e)shares of Common Stock beneficially owned by such Holder and, enter into an underwriting agreement in form reasonably necessary to effect if required by 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 underwritingCommission, the indemnification natural persons thereof that have voting and contribution dispositive control over the Shares. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to Registrable Securities solely because any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date fails to furnish such information within three Trading Days of the closing pursuant to the underwriting agreementCompany's request, in customary form, scope and substance, which opinion shall be reasonably satisfactory any liquidated damages that are accruing at such time as to such Holder or group of Holders only shall be tolled and to the underwriter, as the case any Event that 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 otherwise occur solely because of such securities and their respective counsel in connection with any filings required delay shall be suspended as to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriteronly, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (MPLC, Inc.)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE The Company shall not file a Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, any Prospectus or any amendments or supplements thereto, thereto in which the "Selling Stockholder" section thereof differs from the disclosure received from a Holder in its Selling Holder Questionnaire (as amended or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;supplemented). (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a each Registration Statement or any amendment theretothereto 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 disclosure to the Holders of material and non-public information concerning the Company; and (viv) 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 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 each Registration Statement. (c) Furnish to Notify the Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies promptly as such Holder or group of Holders reasonably possible (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a condition thereto to qualify to do business Selling Stockholder or to file a general consent to service the Plan of process in any such states or jurisdictions where it is Distribution, but not then so subject; (f) Notify information which the Holder or group of Holders Company believes would constitute material and the managing underwriter, if any, non-public information); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to each Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in such registration statementRegistration 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 such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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) Furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Person (including those previously furnished) promptly after the filing of such documents with the Commission. (f) Promptly deliver to each Holder, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. 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. (g) Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of all jurisdictions within the United States, 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 the Registration Statements. (h) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder affected Registration Statements or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, such no Registration Statement nor any Prospectus shall not 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 therein, in 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Calypte Biomedical Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: (A) Not less than three business days prior to the initiation filing of each registration and as a Registration Statement or any related prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: shall (aI) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders Buyers copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof the Buyer (it being understood that such review must be completed within three business days of receipt of the applicable documents), and (II) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the Holder or group reasonable opinion of Holders and their respective counsel;, to conduct a reasonable investigation within the meaning of the ’33 Act. (iB) (I) Prepare and file with the Commission SEC such amendments, including post-effective amendments, to the TZE each Registration Statement and the Prospectus 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, (ii) Period and prepare and file with the Commission as promptly as practicable any SEC such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities ‘33 Act all of the Registrable Securities, ; (iiiII) cause any the related Prospectus prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)prospectus supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, filed; (ivIII) respond as promptly as reasonably possible to any comments received from the Commission SEC with respect to a the Registration Statement or any amendment thereto, ; and (vIV) comply in all material respects with the provisions of the Securities Act and the Exchange ‘33 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 Buyers thereof as set forth in the TZE Registration StatementStatement as so amended or in such prospectus as so supplemented. (cC) Furnish to Notify the Holder or group Buyers promptly of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group any of Holders the following events: (I) the SEC notifies the Company whether there will be a “review” of any Registration Statement; (II) the SEC comments in writing on any Registration Statement covering Registrable Securities; (III) any Registration Statement or any 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 declared effective, to ; (IV) the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the securities SEC or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder any other Federal 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or state governmental authority requests any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of to any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or prospectus or requests additional information related thereto; (V) the Prospectus or for additional information; (g) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of SEC issues any stop order suspending the effectiveness of the TZE any Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of initiates any proceedings for such purposesthat purpose; (iiVI) of the receipt by the Company receives notice of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding for such purpose; and or (iiiVII) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement become ineligible for inclusion 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 to be delivered pursuant to the Securities Act of the occurrence of so that it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (D) Furnish to the Buyers, 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 following all exhibits to the extent requested by such notification person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC. (E) Promptly deliver to the Buyers, without charge, as many copies of the prospectus or prospectuses (including each form of prospectus) and each amendment or supplement thereto as the Buyers may reasonably request. (F) Prior to any public offering of Registrable Securities, use its commercially reasonable best efforts to register or qualify or cooperate with the Buyers in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as the Buyers 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. (G) Upon the occurrence of any event described in Section 6(b)(ii)(C), promptly prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of Registration Statement nor such securities, such Prospectus shall not 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 therein, in the light of the circumstances under which they were made made, not misleading;. (hH) Prevent or obtain Comply with all applicable rules and regulations of the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;SEC. (iI) 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 Enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwriting, the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter under an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in usual and customary form, scope including, without limitation, by providing customary legal opinions, comfort letters and substanceindemnification and contribution obligations, which opinion shall be reasonably satisfactory in the event that the Buyers notify the Company of their intent to resell the Registrable Securities pursuant to an underwritten offering and of the selected underwriter(s) for such Holder or group of Holders and to the underwriter, as the case may be, and their respective counsel; (o) offering. In connection with any underwritten offering meeting the requirements registration of Section 2.1(e) the Registrable Securities, it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the TZE Registration Statement, obtain for delivery Registrable Securities that the Buyers shall furnish 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary it to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding complete the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoRegistration Statement.

Appears in 1 contract

Samples: Stock Purchase Agreement (Lear Corp)

Registration Procedures. In the case of each registration effected The procedures to be followed by the Company pursuant to this Article IIand each selling Holder, and the respective rights and obligations of the Company will use its reasonable best efforts to effect and such registration to permit the sale of securities in accordance Holders, 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 respect to the initiation preparation, filing and effectiveness of each registration a Registration Statement, and the distribution of Registrable Securities pursuant thereto, are as to the completion thereof. At its expense, the Company will use its reasonable best efforts tofollows: (a) Prepare the required TZE Registration StatementThe Company will, including all exhibits and financial statements required pursuant at least five (5) Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of a Registration Statement or any amendments related Prospectus or supplements theretoany amendment or supplement thereto (other than any amendment or supplement made through the incorporation by reference of ordinary course Exchange Act filings), or Prospectus, (i) furnish to the Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall will be subject to the reasonable review of, the Holder or group of such Holders and their respective counsel;(ii) use its commercially reasonable efforts to address in each such document when so filed with the Commission such comments as the Holders reasonably shall propose. (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 TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable law with respect to keep the TZE disposition of all Registrable Securities covered by such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; and (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a each Registration Statement or any amendment theretothereto 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 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. (vc) 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 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 each Registration Statement. (c) 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 Holders or any 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 Company will notify the Prospectus, Holders 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon promptly as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) Promptly notify the Holder or group of Holders possible (i) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; and (ii) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were made not misleading;. (he) Prevent or The Company will use commercially reasonable efforts to obtain the withdrawal of any stop order or other order suspending the effectiveness of a Registration Statement, at the earliest practicable moment, or if any such order or suspension is made effective during any Black-Out Period, at the earliest practicable moment after the Black-Out Period is over. (f) During the Effectiveness Period, the Company will furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Person (including those 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) The Company will promptly deliver to each Holder, without charge, as many copies of each Prospectus or Prospectuses (other than any amendment or supplement made through the incorporation by reference of ordinary course Exchange Act filings) as such Persons may reasonably request during the Effectiveness Period. The Company 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 preliminary amendment or final Prospectus;supplement thereto in accordance with this Agreement. (h) The Company will, prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or blue sky laws of those 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 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 the Registration Statements; provided, that the Company 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 (ii) take any action which would subject the Company to general service of process or any material tax in any such jurisdiction where it is not then so subject. (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 The Company will 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 Registrable Securities to be sold that are in delivered to a form eligible for deposit with The Depository Trust Company and that do not bear any transferee pursuant to the Registration Statements, which certificates shall be free of all restrictive legends, and to enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter any such Holders may request in writing. In connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to its transfer agent 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 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) The Company will use commercially reasonable efforts to prepare such supplements or amendments, including a post-effective amendment, if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at least two Business Days all times during the Effectiveness Period; provided, that no such supplement, 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 to resell Registrable Securities, the Company will (A) provide written confirmation to such 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 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 sale 30 Trading Day period following delivery of securities in any underwritten offering a Use Notice and a notice from the Company under clause (A) above, the Company will provide as promptly as practicable the Holders with written notice thereof and that meets the requirements of Section 2.1(e);Registration Statement is no longer Available. (k) Provide a transfer agent and registrar for all Notwithstanding any other provision of the Agreement, no Holder of Registrable Securities registered may include any of its Registrable Securities in the Registration Statement pursuant to this Agreement unless the TZE 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 and at least ten (10) Trading Days prior to the filing of the Registration Statement; provided, however, an Investor shall not be required to furnish a CUSIP number for all Questionnaire in connection with the initial Registration Statement if such securities, Investor owns Common Stock initially purchased by such Investor at the Closing as of the initial Filing Date. Each Holder who intends to include any of its Registrable Securities in each case not later than the effective date of Registration Statement shall promptly furnish the Company in writing such registration;other information as the Company may reasonably request in writing. (l) Cause all such securities registered hereunder 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 listed on each securities exchange on which the same securities issued 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 such underwritten offering agrees to sell such Holder’s Registrable Securities on the 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 terms of such underwriting arrangements. The Company are then listed;hereby agrees with each Holder that, in connection with any underwritten offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, including using all commercially reasonable efforts to procure customary legal opinions and auditor “comfort” letters. (m) In connection with any the event the Holders seek to complete an underwritten offering meeting the requirements of pursuant to Section 2.1(e3(l), 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 for a 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant period prior to the underwriting agreement, in customary form, scope and substance, which opinion shall be reasonably satisfactory to such Holder or group filing 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 and throughout the Effectiveness Period, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of Section 2.1(e) will make available upon reasonable notice at the Company’s principal place of business or such other reasonable times and for reasonable periods place for inspection by a representative appointed by any Holder, by the managing underwriter and by any attorneyor underwriters selected in accordance with Section 3(l), accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents information and properties books and records of the Company, and cause all of the Company’s officers, directors employees, counsel and employees and the independent certified public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any respond to such Person in connection with such disposition 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 enable them 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 legal counsel to exercise their due diligence responsibilitythe Holders (and legal counsel to such managing underwriter or underwriters); provided further, provided that each such party shall be required to maintain in confidence and not to disclose to any such other Person gaining access to any information regarding or records reasonably designated by the Company pursuant to this Section 2.4(ras being confidential, until such time as (A) shall agree to hold such information becomes a matter of public record (whether by virtue of its inclusion in strict confidence and shall not make the Registration Statement or in any disclosure or use any such information that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (i) other manner other than through the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect afforded access to such information and of which the Holder is aware; pursuant hereto), or (ivB) such Person shall be required so to disclose such information is independently developed by such Person; and pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (s) In connection with any underwritten offering meeting subject to the requirements of Section 2.1(e)such order, cause the senior executive officers of and only after such Person shall have given the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any prompt prior written notice of such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretorequirement).

Appears in 1 contract

Samples: Registration Rights Agreement (Cellular Biomedicine Group, Inc.)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare Cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the required TZE Registration Statementreasonable opinion of respective counsel to each Holder, including all exhibits and financial statements required pursuant to conduct a reasonable investigation within the meaning of the Securities Act Act. Each Holder agrees to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared Company a completed questionnaire in the form attached to be filed, which documents shall be subject this Agreement as Annex B prior to the review of, filing of the Holder or group of Holders and their respective counsel;Registration Statement. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, ; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish to If during the Holder or group Effectiveness Period, the number of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or Registrable Securities at any underwriter may reasonably request time exceeds 100% of the TZE 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 and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein covering the resale by reference and all exhibits (including those incorporated by reference);the Holders of not less than the number of such Registrable Securities. (d) FurnishNotify the Holders of Registrable Securities to be sold (which notice shall, 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 declared effective, to the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to clauses (i) through (iv) hereof, be accompanied by an instruction to suspend the securities or blue sky laws use of each jurisdiction the Prospectus until the requisite changes have been made) as shall be promptly as 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, possible and (if requestedrequested by any such Person) confirm such advice notice in writing and provide copies of no later than one Trading Day following the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, day (i) when of the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (ii) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (iv) of 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 remain confidential to 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 keep such information confidential, each such Holder makes no acknowledgement that any such information is material, non-public information. (e) Use its reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a 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. (f) Furnish to each Holder, 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 following such notification promptly prepare and furnish 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) 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(d). (h) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or group Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (i) If requested by a Holder, cooperate with such Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a reasonable number transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Securities Purchase Agreement, of copies 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. (j) Upon the occurrence of any event contemplated by Section 3(d), as promptly as reasonably 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 toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hi) Prevent or obtain the withdrawal through (iv) of any stop order or other order suspending Section 3(d) above to suspend the use of any preliminary or final Prospectus; (i) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as until the managing underwriter and the Holder or group of Holders agree should be included therein relating to the plan of distribution with respect requisite changes to such securitiesProspectus have been made, and make all required filings then the Holders shall suspend use of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified Prospectus. The Company will use its reasonable efforts to ensure that the use of the matters Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to be incorporated in such Prospectus supplement or post-effective amendment; (jexercise its right under this Section 3(j) Cooperate with to suspend the Holder or group availability of Holders a Registration Statement 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);Prospectus. (k) Provide a transfer agent Comply with all applicable rules and registrar for all Securities registered pursuant to regulations of the TZE Registration Statement and a CUSIP number for all such securities, in each case not later than the effective date of such registration;Commission. (l) Cause all such securities registered hereunder The Company may require each selling Holder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter Commission, the natural persons thereof that have voting and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of dispositive control over the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoshares.

Appears in 1 contract

Samples: Registration Rights Agreement (iBio, Inc.)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company obligations hereunder: (a) With respect to a Registration Request pursuant to this Article IISection 2(a), the Company will shall use its reasonable best efforts to effect prepare and file with the Commission on or prior to the Filing Date with respect to a Registration Request under Section 2(a), a Registration Statement on Form S-3 (or if the Company is not then eligible to register for resale the Registrable Securities on Form S-3 such registration to permit the sale of securities shall be on another appropriate form in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable Securities Act and will keep the Holders advised on a reasonably current basis as rules and regulations promulgated thereunder) covering the resale to the initiation public of each registration the Registrable Securities, and as to the completion thereof. At its expense, the Company will use its reasonable best efforts to:to cause the Registration Statement to become effective and remain effective as provided herein. (ab) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents The Company shall be subject to the review of, the Holder or group of Holders and their respective counsel; (i) Prepare 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, (ii) Effective Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (ii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, thereto and promptly provide the Executive true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (viii) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish to The Company shall promptly notify the Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 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 reasonably requested by the Holder or group of Holdersfiled; 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (iB) when the TZE Commission notifies the Company whether there will be a “review” of such Registration Statement, Statement and whenever the Commission comments in writing on such Registration Statement and (C) with respect to the Registration Statement or any amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) 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; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Company becomes aware that makes any statement made in the Registration Statement or Prospectus included or any document incorporated or deemed to be incorporated therein by reference untrue in such registration statementany 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (d) The Company shall use its reasonable best efforts to avoid the issuance of, or, if issued, 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 United States jurisdiction, at the earliest practicable moment. (e) Upon the occurrence of any event contemplated by Section 3(c)(v), the Company shall promptly 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 following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in the light of the circumstances under which they were made made, not misleading;. (f) 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 to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails to furnish such information within fifteen (15) days after receiving a written request from the Company for such information. (g) 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 3(g) and notice from the Company that such Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(c) and (ii) it and its officers, directors or Affiliates, if any, 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. (h) Prevent or obtain Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the withdrawal Company of the occurrence of any stop order event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv) or other order suspending 3(c)(v), 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(l), or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any preliminary additional or final Prospectus;supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. (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 such securities registered hereunder to be listed on each securities exchange on which the same 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 If (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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 there is material non-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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company pursuant which the Board reasonably and in good faith determines not to this Section 2.4(rbe in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) shall agree 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 hold such information the Company which the Board reasonably determines not to be in strict confidence and shall the Company’s best interest to disclose, then the Company may postpone or suspend filing or effectiveness of a Registration Statement for a period not make any disclosure or use any such information to exceed ninety (90) consecutive days, provided that the Company determines in good faith to be confidential, may not postpone or suspend its obligation under this Section 3(i) for more than one hundred and of which determination such Person is notified, unless twenty (i120) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate days in the customary “road show” presentations that may be reasonably requested by the managing underwriter in aggregate during any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretotwelve month period.

Appears in 1 contract

Samples: Replacement Grant Agreement (Diligent Board Member Services, Inc.)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will use shall: (a) Use its commercially reasonable best efforts to effect prepare and file with the Commission, on or prior to the Filing Date (or if the Company is not eligible to file a Registration Statement covering all of the Registrable Securities on the Filing Date, then on the earliest date possible following the Filing Date on which the Company would be eligible to file a Registration Statement covering all of the Registrable Securities), a Registration Statement on Form S-3 (or if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith which Form shall be reasonably acceptable to permit the sale of securities Holders) in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable and will keep specified by 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 financial statements required pursuant to the Securities Act to be filed therewithHolders, and before filing cause such registration statement, or any amendments or supplements thereto, or Prospectus, furnish Shelf Registration Statement to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders become effective and their respective counsel;remain effective as provided herein. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE Shelf Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible practicable to any comments received from the Commission with respect to a any Registration Statement covering any Registrable Securities or any amendment thereto, thereto and promptly provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to the Holder be sold: (i)(A) when a Prospectus or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or Prospectus supplement covering any underwriter may reasonably request of the TZE Registration Statement and any amendment Registrable Securities 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 a Registration Statement covering any Registrable Securities is declared effectiveproposed to be filed, to (B) when 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 reasonably requested by the Holder or group of Holders; provided, however, that Commission notifies the Company shall not whether there will be required a "review" of such Registration Statement and whenever the Commission comments 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 writing on such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if anyRegistration Statement, and (if requestedC) confirm with respect to any such advice in writing and provide copies of the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus covering any Registrable Securities or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE any Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as that makes any statement made in a result Registration Statement or Prospectus covering any Registrable Securities or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of which the Prospectus included in such registration statementRegistration Statement or Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of any Registration Statement covering any Registrable Securities or (ii) any suspension of the qualifications (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as reasonably practicable. (e) Furnish to each Holder, 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, without charge, as many copies of the Prospectus or Prospectuses covering any Registrable Securities (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. (g) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the 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. (h) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as practicable, prepare a supplement toor amendment, including a post-effective amendment, to such Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of delivered, neither such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Use its best efforts to cause all Registrable Securities 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 any Registration Statement to be incorporated in such Prospectus supplement listed on The Nasdaq National Market and any other securities exchange, quotation system, market or postover-effective amendment; (j) Cooperate with the Holder or group of Holders and the managing underwriterthe-counter bulletin board, 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 such securities registered hereunder to be listed on each securities exchange on which the same similar securities issued by the Company are then listed;listed as and when required pursuant to the Purchase Documents. (mj) In connection with any underwritten offering meeting The Company may require each selling Holder to furnish to the requirements of Section 2.1(e)Company such information, enter into an underwriting agreement in form reasonably necessary to effect including information regarding the offer and sale distribution of such securitiesRegistrable Securities, provided as is required by law to be disclosed in a Registration Statement covering such Registrable Securities and the Company may exclude from such registration the Registrable Securities of any such Holder who fails to furnish such information within a reasonable time after receiving such request. The failure by the Company to file the Shelf Registration Statement by the Filing Date, to cause it to become effective by the Effectiveness Date or to maintain its effectiveness for the Effectiveness Period, if due solely to the breach of a Holder's obligations under this Section, shall not be deemed a breach of the Company's obligations to such Holder under this Agreement or the applicable Purchase Document to which such Holder is a party. The rights of Holders that timely supply such information shall not be affected by the preceding sentence and the Company shall remain obligated hereunder to file, and cause and maintain the effectiveness of the Shelf Registration Statement on behalf of such Holders. If any 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 such Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Purchaser covenants and agrees that (i) it will not sell any Registrable Securities under any Registration Statement until it has received copies of the Prospectus relating thereto as then amended or supplemented as contemplated in Section 3(g) and notice from the Company that such underwriting agreement contains reasonable Registration Statement and customary provisions, any post-effective amendments thereto have become effective as contemplated by Section 3(c); and (ii) if participating in such underwritingthe Purchaser and its officers, a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwriting, the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder directors or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 underwriterAffiliates, if any, participating will comply with the Prospectus delivery and any other requirements of the Securities Act applicable to them in connection with sales of Registrable Securities pursuant to such Registration Statement. 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)(ii), 3(c)(iii), 3(c)(iv) or 3(c)(v), such Holder will forthwith discontinue disposition of such securities and their respective counsel Registrable Securities under such Registration Statement until such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(h), or until it is advised in connection with 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 required that are incorporated or deemed to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of Section 2.1(e) make available upon reasonable notice at reasonable times and for reasonable periods for inspection incorporated by a representative appointed by any Holder, by the managing underwriter and by any attorney, accountant reference in such Prospectus or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoRegistration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Sheldahl Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of each Registration Statement or any amendments related Prospectus or supplements theretoany amendment or supplement thereto (excluding any document that would be incorporated or deemed incorporated therein by reference), or Prospectusthe Company shall, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 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 shall reasonably and in good faith object, provided, the Holder or group Company is notified of such objection in writing no later than 3 Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within 15 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish If during the Effectiveness Period, the number of Registrable Securities relating to a particular Registration Statement at any time exceeds 85% of the number of shares of Common Stock then registered in such Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the Holder applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 130% of the number of such Registrable Securities (excluding, for purposes of this number, any securities which may be issuable upon any stock split, dividend or group other distribution or recapitalization provision in the Debentures and the Warrants or in connection with any anti-dilution provisions in the Debentures and Warrants). (d) Notify the Holders of Holders Registrable Securities to be sold (which notice shall, pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than two Trading Days following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, to filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 interests of the Company to allow continued availability or the Registration Statement or Prospectus. (e) Promptly deliver to each Holder, 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. 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. (f) Use commercially reasonable efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (g) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (h) Upon the occurrence of any event contemplated by this Section 3, as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to the Holder related Prospectus or group of Holders a reasonable number of copies of a supplement toany document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made 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. 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 consecutive days or for multiple periods not to exceed 90 days in any 12 month period. (hi) Prevent or Comply with all applicable rules and regulations of the Commission. (j) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) 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 Registrable Securities 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 jurisdiction, at the requirements of Section 2.1(e);earliest practicable moment. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require, at any time prior 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant third Trading Day prior to the underwriting agreementFiling Date, in customary form, scope and substance, which opinion shall be reasonably satisfactory each Holder 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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, requested by the managing underwriter and by any attorneyCommission, accountant or other agent retained by any such Holder or any such underwriterthe controlling person thereof, all pertinent financial and other records, corporate documents and properties within three Trading days of the Company, and cause all 's request. 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 officers's request, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any liquidated damages that are accruing at such Person in connection with such disposition as time shall be necessary to enable them to exercise their due diligence responsibilitytolled and any Event of Default that may otherwise occur solely because of such delay shall be suspended, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Matritech Inc/De/)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than two Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel 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, or Prospectus, furnish thereto to which the Holder or group Holders of Holders copies a majority of all documents prepared to be filed, which documents the Registrable Securities shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object in good faith. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and, as promptly as 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold as promptly as reasonably possible (and, in the Holder or group case of Holders (i)(A) below, not less than two Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of the Registration Statement and qualify whenever the securities covered by such registration statement pursuant to Commission comments in writing on the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request 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; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder, without charge, at least one conformed copy of 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (h) 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 pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide It shall be a transfer agent and registrar for all Securities registered condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement of the TZE Registration Statement and a CUSIP number for all Registrable Securities of each Purchaser that such securities, in each case not later than the effective date of such registration; (l) Cause all such securities registered hereunder Stockholder shall furnish to be listed on each securities exchange on which the same securities issued by the Company are then listed; (m) In connection with any underwritten offering meeting in writing such information regarding itself and the requirements of Section 2.1(e)Registrable Securities held by it, enter into an underwriting agreement in form as shall be reasonably necessary required to effect the offer and sale registration 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 indemnification and contribution obligations of such Holder shall be several and not jointRegistrable Securities, and (iv) if participating in such underwriting, the aggregate amount of Purchaser shall execute such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition registration as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company pursuant may reasonably request. At least five (5) Trading Days prior 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 first anticipated filing date of the Registration Statement, the Company determines in good faith shall notify such Purchaser of the information the Company requires from such Stockholder (the “Requested Information”). If, at least two (2) Trading Days prior to be confidentialthe filing date, and of which determination such Person is notifiedthe Company has not received the Requested Information from a Purchaser, unless (i) then the release Company may file the Registration Statement without including the Registrable Securities of such information is required by law; (ii) such information is Purchaser. Each Purchaser hereby agrees, as to himself or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available itself only, to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to cooperate with the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be as reasonably requested by the managing underwriter Company in connection with the preparation and filing of the Registration Statement and that upon receipt of any notice from the Company of the happening of any event of the kind described in Sections 3(c)(iii), (iv) or (v) above, such underwritten offering and otherwise Purchaser will immediately discontinue disposition of its Registrable Securities pursuant to facilitate, cooperate with, and participate in each proposed offering the Registration Statement covering such Registrable Securities until such copies of a supplemented or amended prospectus contemplated herein and customary selling efforts related theretoby Section 3 shall be furnished to such Purchaser.

Appears in 1 contract

Samples: Registration Rights Agreement (Pharmos Corp)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than two (2) Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of the Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, or Prospectusthe Company shall, (i) furnish to the Holder or group of Holders copies of all such documents prepared proposed to be filed, filed (including documents incorporated or deemed incorporated by reference) which documents shall will be subject to the review ofof such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries from Holders as shall be necessary, in the reasonable opinion of respective counsel to enable the Holder or group to conduct a reasonable investigation within the meaning of Holders and their respective counsel;the Securities Act. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within twenty days, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold as promptly as reasonably possible (and, in the Holder or group case of Holders (i)(A) below, not less than three Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; provided that if the Company notifies the Holders in accordance with paragraphs (ii) through (v) of Section 2(b) above to suspend the use of the Prospectus until the end of the Deferral Period, then the Initial Purchasers and the Holders shall suspend use of such prospectus until the Company has notified the Holders in accordance with Section 6(d). (d) Use best efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder, without charge, at least one conformed copy of the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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. 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. (g) Prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the 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, that the -------- Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or subject the Company to any tax in any such jurisdiction where it is not then so subject. (h) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all The Company may require each Holder of Registrable Securities registered to be sold 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 such securities registered hereunder to be listed on each securities exchange on which the same securities issued by furnish to the Company are then listed; (m) In connection with any underwritten offering meeting such information regarding 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for distribution of the Registrable Securities as the Company dated the date of the closing pursuant may from time to the underwriting agreement, in customary form, scope and substance, which opinion shall time be reasonably satisfactory required to such Holder or group of Holders and to include in 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 and the Company and may exclude from such registration the managing underwriter, with copies to Registrable Securities of 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 that unreasonably fails 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company pursuant to this Section 2.4(r) shall agree to hold furnish such information in strict confidence and shall not make any disclosure or use any within a reasonable time after receiving such information that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretorequest.

Appears in 1 contract

Samples: Registration Rights Agreement (Questcor Pharmaceuticals Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three (3) Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of each Registration Statement or any amendments related Prospectus or supplements theretoany amendment or supplement thereto (excluding any document that would be incorporated or deemed incorporated therein by reference), or Prospectusthe Company shall, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 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 shall reasonably and in good faith object, provided, the Holder or group Company is notified of such objection in writing no later than three (3) Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within 15 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 Holder or group applicable Filing Date, an additional Registration Statement covering the resale of by the Holders of not less than 200% of the number of such Registrable Securities. (d) Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (ii) through (vi) hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five (5) Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 interests of the Company to allow continued availability or the Registration Statement or Prospectus. (e) Promptly deliver to each Holder, 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. 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. (f) Use commercially reasonable efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (g) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (h) Upon the occurrence of any event contemplated by this Section 3, as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to the Holder related Prospectus or group of Holders a reasonable number of copies of a supplement toany document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made 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. (hi) Prevent or Comply with all applicable rules and regulations of the Commission. (j) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) 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 Registrable Securities 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 jurisdiction, at the requirements of Section 2.1(e);earliest practicable moment. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require, at any time prior 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; third (l3rd) Cause all such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant Trading Day prior to the underwriting agreementFiling Date, in customary form, scope and substance, which opinion shall be reasonably satisfactory each Holder 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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, requested by the managing underwriter and by any attorneyCommission, accountant or other agent retained by any such Holder or any such underwriterthe controlling person thereof, all pertinent financial and other records, corporate documents and properties within three (3) Trading days of the Company, and cause all 's request. 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 (3) Trading Days of the Company’s officers's request, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any liquidated damages that are accruing at such Person in connection with such disposition as time shall be necessary to enable them to exercise their due diligence responsibilitytolled and any Event that may otherwise occur solely because of such delay shall be suspended, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Smartire Systems Inc)

Registration Procedures. In connection with the case registration obligations of each registration effected by the Company pursuant to this Article IIunder Section 2 hereof, the Company will 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 toshall: (a) Prepare the required TZE Before filing any Shelf Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, Statement or Prospectus or any amendments or supplements thereto, or Prospectusthereto with the SEC, furnish to the Holder or group Initial Purchaser and the Special Counsel of Holders such offering, if any, copies of all such documents prepared proposed to be filed, which documents shall be subject filed at least three Business Days prior to the review of, the Holder filing of such Shelf Registration Statement or group of amendment thereto or Prospectus or supplement thereto (other than supplements that do nothing more than name Notice Holders and their respective counsel;provide information with respect thereto). (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 TZE each Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Shelf Registration Statement continuously effective as to the Registrable Securities for during the Effectiveness Period, (ii) prepare and file with ; cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)prospectus supplement, and, and as so supplemented or amended, to be filed pursuant to Rule 424, 424 (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, similar provisions then in force) under the Securities Act; and (v) use its commercially reasonable efforts to 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 TZE such Shelf Registration Statement during the applicable period Effectiveness Period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders sellers thereof as set forth in the TZE such Shelf Registration StatementStatement as so amended or such Prospectus as so supplemented. (c) Furnish As promptly as practicable give notice to the Holder or group of Holders Notice Holders, the Initial Purchaser and each underwriterthe Special Counsel, if any(i) when any Prospectus, without chargeprospectus supplement, as many conformed copies as such Holder or group of Holders or any underwriter may reasonably request of the TZE Shelf 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 a Shelf Registration Statement is 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed with the SEC and, with respect to a Shelf Registration Statement or becomes any post-effective and amendment, when the applicable Prospectus same has been filed; declared effective (other than supplements that do nothing more than name Notice Holders and provide information with respect thereto), (ii) of any written comments request, following the effectiveness of the initial Shelf Registration Statement under the Securities Act, by the Commission or any request by the Commission SEC or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE any Shelf Registration Statement or the related Prospectus or for additional information; , (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the TZE any Shelf Registration Statement or any order by the Commission initiation or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, threatening of any proceedings for such purposes; that purpose, (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction or the initiation, initiation or written threatened initiation, threatening of any proceeding for such purpose; , (v) of the occurrence of, but not the nature of or details concerning, a Material Event and (iiivi) of the determination by the Company that 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 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. As promptly as practicable after the effectiveness of any time when Shelf Registration Statement, the Company shall issue a press release to PR Newswire announcing such effectiveness. (d) Use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Shelf 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 Purchaser of the withdrawal of any such order. (e) As promptly as practicable furnish to each Notice Holder, the Special Counsel and the Initial Purchaser, upon request and without charge, at least one conformed copy of each Shelf Registration Statement and any amendment thereto, including exhibits and all documents incorporated or deemed to be incorporated therein by reference. (f) During the Effectiveness Period, deliver to each Notice Holder, the Special Counsel, if any, and the Initial Purchaser, in connection with any sale of Registrable Securities pursuant to a Shelf 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 TZE 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 a Shelf Registration Statement, use its commercially reasonable efforts to register or qualify or cooperate with the 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 writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to a Shelf Registration Statement, use its commercially 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 reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the Shelf Registration Statement is 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 would not otherwise be delivered pursuant 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 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 of Act, (B) the occurrence of any event or the existence of any fact (a “Material Event”) as a result of which the Prospectus included in such registration statement, as then in effect, includes an a Shelf Registration Statement shall contain any untrue statement of a material fact or omits 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 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 following such notification the related Prospectus: (i) in the case of clause (B) above, as promptly as practicable prepare and furnish file, if necessary pursuant to applicable law, a post-effective amendment to such Shelf Registration Statement or a supplement to the Holder related Prospectus or group of Holders a reasonable number of copies of a supplement to, any document incorporated therein by reference or an amendment of, file any other required document that would be incorporated by reference into such Shelf Registration Statement and Prospectus as may be necessary so that, as thereafter delivered to the purchasers of that such securities, such Prospectus shall Shelf Registration Statement does not contain an any 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 light of the circumstances under which they were 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 does not contain 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Grubb & Ellis Co)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto, or Prospectus, furnish thereto to which the Holder or group Holders of Holders copies a majority of all documents prepared to be filed, which documents the Registrable Securities shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective (subject to Section 2(d)) as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within fifteen days, to any comments received from the Commission with respect to a Registration Statement or any amendment theretothereto and, as promptly as reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (viv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to the Company with respect to the disposition of all Registrable Securities covered by the TZE 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 as set forth in the TZE a Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold as promptly as reasonably possible (and, in the Holder or group case of Holders (i)(A) below, not less than three Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of a Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request other Federal or state governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in such registration statementRegistration 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 such Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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) Furnish to each Holder, 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 following such notification promptly prepare and furnish all exhibits to the Holder extent reasonably requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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. 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. (g) Prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the 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, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (h) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Agreement and the Settlement Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request subject to applicable laws. (i) Upon the occurrence of any event contemplated by Section 3(c)(v) and subject to Section 2(d), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment if needed, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of delivered, neither such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each selling Holder 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitateCommission, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretothe controlling person thereof.

Appears in 1 contract

Samples: Registration Rights Agreement (Adept Technology Inc)

Registration Procedures. In the case of each registration effected by If and whenever the Company pursuant is required to this Article IIregister Registrable Securities in a Piggyback Registration, the Company will use its reasonable best efforts to effect such registration to permit the sale of securities such Registrable Securities in accordance with the intended method or methods plan of distribution thereof thereof, and pursuant thereto the Company will as expeditiously as 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 topossible: (a) Prepare prepare and file with the required TZE SEC as soon as practicable a Registration Statement, including all exhibits Statement with respect to such Registrable Securities and financial statements required pursuant use its best efforts to cause such Registration Statement to become effective and remain continuously effective until the Securities Act date earlier to be filed therewithoccur of (i) the date six months from the date such Registration Statement was declared effective, and (ii) the date the last of the Registrable Securities covered by such Registration Statement have been sold provided that before filing such registration statement, a Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectus, the Company shall furnish to the Holder or group Holders of Holders the Registrable Securities covered by such Registration Statement and the underwriters, if any, draft copies of all such documents prepared proposed to be filed, which documents shall will be subject to the review of, the Holder or group of such Holders and their respective counselunderwriters, and the Company shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the Holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object; (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 Registrable Securities for the Effectiveness Period, (iib) prepare and file with the Commission as promptly as practicable any additional registration statements SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be necessary in order requested by any Holder of Registrable Securities or any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to register for resale under the registration form used by the Company or by the Securities Act all of or rules and regulations thereunder to keep the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of effective until all Registrable Securities covered by the TZE such Registration Statement during the applicable period are sold in accordance (subject to the terms of this Agreement) with the intended methods plan of disposition by the Holders thereof as distribution set forth in the TZE Registration Statement. (c) 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 Holders or any 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; (ec) On or prior to promptly notify the date on which the TZE Registration Statement is 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 selling Holders of each jurisdiction as shall be 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; (f) Notify the Holder or group of Holders Registrable Securities and the managing underwriter, if any, and (if requestedrequested by any such Person) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, writing, 6 36 (i1) when the TZE Registration Statement, Prospectus or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 has been filed, and, with respect to such securities, and make all required filings of such Prospectus supplement the Registration Statement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or any 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 such securities registered hereunder to be listed on each securities exchange on which when the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.has become effective,

Appears in 1 contract

Samples: Distribution Agreement (Intracel Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders owning Registrable Securities Act registered under such Registration Statement copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file any such Registration Statement or any such Prospectus or any amendments or supplements theretothereto to which the Holders of a majority of the Registrable Securities registered thereunder shall reasonably object in good faith, or Prospectus, furnish to provided that the Holder or group Company is notified of such objection in writing no later than five Trading Days after such Holders have been so furnished copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the a Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the applicable Registrable Securities for the applicable Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a such Registration Statement or any amendment theretothereto and, as promptly as reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (viv) 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 TZE such Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the Holders’ intended methods of disposition by the Holders thereof as set forth in the TZE Registration Statement. (c) 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 Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment as so amended 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretosupplemented.

Appears in 1 contract

Samples: Securities Purchase Agreement (Verticalnet Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Each Holder agrees to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared Company a completed questionnaire in the form attached to be filed, which documents shall be subject this Agreement as Annex B (a “Selling Stockholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the review of, the Holder or group of Holders and their respective counsel;Filing Date. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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, prior to the Holder or group 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 (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one Trading Day prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effectiveproposed to be filed, to (B) when 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 reasonably requested by the Holder or group of Holders; provided, however, that Commission notifies the Company shall not whether there will be required a “review” of such Registration Statement and whenever the Commission comments 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 writing on such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if anyRegistration Statement, and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statementsame has become effective, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE a Registration Statement or the Prospectus or for additional information; , (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or of any stop order suspending the use effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and , (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleadingmisleading and (vi) of 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 remain confidential to 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 keep such information confidential, each such Holder makes no acknowledgement that any such information is material, non-public information. (e) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a 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. (f) Furnish to each Holder, 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 following such notification promptly prepare and furnish 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 so furnished. (g) 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(d). (h) The Company shall cooperate with any broker-dealer through which a Holder proposes to resell its Registrable Securities in effecting a filing with the FINRA Corporate Financing Department pursuant to NASD Rule 2710, as requested by any such Holder, and the Company shall pay the filing fee required by such filing within two (2) Business Days of request therefor. (i) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or group qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (j) If requested by a Holder, cooperate with such Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a reasonable number transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of copies 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. (k) Upon the occurrence of any event contemplated by Section 3(d), as promptly as reasonably 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 toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hiii) Prevent or obtain the withdrawal through (vi) of any stop order or other order suspending Section 3(d) above to suspend the use of any preliminary or final Prospectus; (i) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as until the managing underwriter and the Holder or group of Holders agree should be included therein relating to the plan of distribution with respect requisite changes to such securitiesProspectus have been made, and make all required filings then the Holders shall suspend use of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified Prospectus. The Company will use its best efforts to ensure that the use of the matters Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to be incorporated in such Prospectus supplement or post-effective amendment; (jexercise its right under this Section 3(k) Cooperate with to suspend the Holder or group availability 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 Prospectus for a CUSIP number for all such securities, period not to exceed 60 calendar days (which need not be consecutive days) in each case not later than the effective date of such registration;any 12 month period. (l) Cause Comply with all such securities registered hereunder to be listed on each securities exchange on which applicable rules and regulations of the same securities issued by the Company are then listed;Commission. (m) In connection with any underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement in form reasonably necessary The Company may require each selling Holder 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the managing underwriter, with copies to shares. If any Holder or group of Holders, a “cold comfort” letter from the Company’s independent certified public accountants in customary form and covering fails to furnish 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all information within three Trading Days of the Company’s officersrequest, directors and employees and the independent public accountants who have certified the Companysuch Holder’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that Registrable Securities may be reasonably requested by the managing underwriter in excluded from any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoapplicable Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (FLO Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of a Registration Statement and not less than 1 Trading Day prior to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statementthe Company shall, or any amendments or supplements thereto, or Prospectus, (i) furnish to the Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof Holder, 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 Holder to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holder shall reasonably object in good faith, provided that, the Company is notified of such objection in writing no later than 5 Trading Days after the Holder has been so furnished copies of a Registration Statement or group 1 Trading Day after the Holder has been so furnished copies of Holders any related Prospectus or amendment or supplement thereto and their respective counsel;provided that such failure to file shall not constitute a default under any of the Transaction Documents provided that the Company use commercially reasonable effort to address such objections promptly. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement (provided that the Company may excise any information contained therein which would constitute material non-public information as to Holder); and (viv) 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 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 as Holder set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish to 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 Holder or group of Holders not less than 100% of the number of such Registrable Securities. (d) Notify the Holder of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than 1 Trading Day prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed 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 reasonably requested by the Holder or group of Holdersfiled; 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (iB) when the TZE 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 a Registration Statement or any amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) of any written comments request by the Commission or any request other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 remain confidential to Holder until such information otherwise becomes public, unless disclosure by Holder is required by law; provided, further, notwithstanding Holder’s agreement to keep such information confidential, the Holder makes no acknowledgement that any such information is material, non-public information. (e) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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. (f) Furnish to Holder, 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 following such notification promptly prepare and furnish 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) Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by the Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or group supplement thereto, except after the giving of Holders any notice pursuant to Section 3(d). (h) Should any broker-dealer be required to make a filing or have the Company make a filing with any regulatory authority prior to executing a sale by Holder, the Company shall (i) make an issuer filing with such authority or authorities, (ii) respond within five Trading Days to any comments received in connection therewith, and (iii) pay the filing fees required in connection therewith. (i) Prior to any resale of Registrable Securities by Holder, use its commercially reasonable number efforts to register or qualify or cooperate with the Holder in connection with the registration or qualification (or exemption from the Registration or qualification) of copies such Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (j) If requested by the Holder, cooperate with the Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as Holder may request. (k) Upon the occurrence of any event contemplated by this Section 3, as promptly as reasonably 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 toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holder in accordance with clauses (hiii) Prevent or obtain the withdrawal through (vi) of any stop order or other order suspending Section 3(d) above to suspend the use of any preliminary or final Prospectus; (i) Promptly incorporate in a Prospectus supplement or post-effective amendment until the requisite changes to such information as the managing underwriter and Prospectus have been made, then 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 shall suspend use of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified Prospectus. The Company will use its best efforts to ensure that the use of the matters to Prospectus may 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 resumed 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;promptly as is practicable. (l) Cause Comply with all such securities registered hereunder to be listed on each securities exchange on which applicable rules and regulations of the same securities issued by the Company are then listed;Commission. (m) In connection with any underwritten offering meeting The Company may require the requirements of Section 2.1(e), enter into an underwriting agreement in form reasonably necessary Holder 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by the Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the managing Shares. The Holder acknowledges that it will be named as an “underwriter, with copies to any Holder or group of Holders, a “cold comfortletter 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 Registrable Securities 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 holdersProspectus, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoCommission policies.

Appears in 1 contract

Samples: Registration Rights Agreement (Gei Global Energy Corp.)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: Not less than five Business Days prior to the initiation filing of each registration and as Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: shall, (ai) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders and their Special Counsel copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of, the Holder or group of such Holders and their Special Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to EXHIBIT 10(B)-4. such inquiries as shall be necessary, in the reasonable opinion of respective counsel;counsel 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 and their Special Counsel shall reasonably object, PROVIDED, the Company is notified of such objection no later than 3 Business Days after the Holders have been so furnished copies of such documents. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within ten Business Days, to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, 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 (viv) 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. Statement as so amended or in such Prospectus as so supplemented. 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 all their existing Registration Statements hereunder. Notify the Holders of Registrable Securities to be sold and their Special Counsel as promptly as reasonably possible (cand, in the case of (i)(A) Furnish 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 Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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; ; (g) Promptly notify the Holder or group of Holders (iiii) of the EXHIBIT 10(B)-5. issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiivi) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. Promptly deliver to each Holder and 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. 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. Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and 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, THAT the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or subject the Company to any material tax in any such jurisdiction where it is not then so subject. Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable EXHIBIT 10(B)-6. Securities to be in such denominations and registered in such names as any such Holders may request. Upon the occurrence of any event contemplated by Section 3(d)(vi), as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 . Comply with all applicable rules 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 regulations 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoCommission.

Appears in 1 contract

Samples: Registration Rights Agreement (Fortel Inc /Ca/)

Registration Procedures. In the case connection with any offering of each registration effected by the Company Registrable Securities registered pursuant to this Article IISection 7, the Company will use its reasonable best efforts to effect such registration to permit shall: (a) Prepare and file with the Commission within 90 days after receipt of a request for registration, a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of securities the Registrable Securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable thereof, 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 to cause such Registration StatementStatement to become and remain Effective as provided herein, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and PROVIDED that before filing such registration statement, with the Commission a Registration Statement or disclosure document constituting part of a Registration Statement or any amendments or supplements thereto, or Prospectus, the Company will (x) furnish to one counsel selected by the Holder or group holders of Holders 51% of the Registrable Securities covered by such Registration Statement copies of all such documents prepared proposed to be filed, which documents shall be subject filed for said counsel's review and comment and (y) notify each holder of Registrable Securities covered by such Registration Statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the review of, the Holder entry of such stop order or group of Holders and their respective counsel;to remove it if entered. (ib) Prepare and file with the Commission such amendments, including post-effective amendments, amendments and supplements to the TZE such Registration Statement and the Prospectus any disclosure document constituting part of such Registration Statement used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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.keep (c) Furnish to the Holder or group of Holders each holder and each underwriter, if any, without chargeof Registrable Securities covered by such Registration Statement such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the disclosure document included in such Registration Statement (including each preliminary disclosure document), in conformity with the requirements of the Securities Act, and such other documents as many conformed copies as such Holder or group any holder of Holders or any underwriter Registrable Securities may reasonably request in order to facilitate the disposition of the TZE Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein Registrable Securities owned by reference and all exhibits (including those incorporated by reference);such holder. (d) Furnish, without charge, Use its best efforts to register or qualify such number Registrable Securities under such other state securities or "blue sky" laws of Prospectuses, including such jurisdictions as any preliminary Prospectusesholder, and other documents incident theretounderwriter, including any amendment if any, 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 declared effective, to the extent required by applicable law, register and qualify the securities Registrable Securities covered by such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall Registration Statement reasonably requests and do any and all other acts and things which may be reasonably requested necessary or advisable to enable such holder and each underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Holder or group of Holderssuch holder; provided, however, PROVIDED that the Company shall will not be required in connection therewith or as a condition thereto to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 7.04(d), (y) subject itself to taxation in any such jurisdiction or to file a general (z) consent to general service of process in any such states jurisdiction. (e) Use its best efforts to cause the Registrable Securities covered by such Registration Statement to be registered with or jurisdictions where it is not then so subject;approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holder or holders thereof to consummate the disposition of such Registrable Securities. (f) Notify the Holder or group Immediately notify each holder of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) Registrable Securities at any time when a Prospectus disclosure document relating to the TZE Registration Statement thereto is required to be delivered pursuant to under the Securities Act of the occurrence happening of any event which comes to the Company's attention if as a result of which such event the Prospectus disclosure document included in such registration statement, as then in effect, includes Registration Statement contains an untrue statement of a material fact or omits untrue (g) Use its best efforts to state a material fact required cause all such Registrable Securities to be stated therein or necessary to make listed on a national securities exchange (including NASDAQ) and on each securities exchange on which similar securities issued by the statements therein in light of the circumstances under which they were made, not misleadingCompany may then be listed, and following enter into such notification promptly prepare customary agreements including a listing application and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 indemnification agreement in light of the circumstances under which they were 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 securitiescustomary form, 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 provide a transfer agent and registrar for all such Registrable Securities registered pursuant to the TZE covered by such Registration Statement and a CUSIP number for all such securities, in each case not no later than the effective date Effective Date of such registration;Registration Statement. (lh) Cause all Enter into such securities registered hereunder to be listed on each securities exchange on which the same securities issued by the Company are then listed; customary agreements (m) In connection with any underwritten offering meeting the requirements of Section 2.1(e), enter into including an underwriting agreement in form customary form) and take all such other actions as the holders of 51% of the Registrable Securities being covered by such Registration Statement or the underwriters retained by such holders, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including customary representations, warranties, indemnities and agreements. (i) Make available for inspection by any holder of Registrable Securities covered by such Registration Statement, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such holder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, "Records"), if any, as shall be 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 enable them to such agreement, (iii) if participating in such underwriting, the indemnification and contribution obligations of such Holder shall be several and not jointexercise their due diligence responsibility, and (iv) if participating cause the Company's and its Affiliates' officers, directors and employees to supply all information and respond during normal business hours to all inquiries reasonably requested by any such Inspector in connection with such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering;Registration Statement. (nj) In connection with any underwritten offering meeting the requirements of Section 2.1(e), Use its best efforts to obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 '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 holders of execution 51% in interest of the underwriting agreement and brought down to the closing pursuant to the underwriting agreement;Registrable Securities being sold reasonably request. (pk) Cooperate Otherwise use its best efforts to comply with any Holder or group of Holders all applicable rules 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) regulations of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the CompanyCommission, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.make

Appears in 1 contract

Samples: Series a Preferred Stock Purchase Agreement (Paula Financial)

Registration Procedures. In connection with the case of each Purchaser’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toPurchaser shall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three (3) Trading Days prior to the Securities Act filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference (other than any documents containing material non-public information)), the Purchaser shall (i) furnish to each Seller and any counsel designated by such Seller (each, a “Seller Counsel”) copies of all such documents proposed to be filed therewithand (ii) cause its officers and directors, counsel and before filing independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of each Seller Counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Purchaser shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto, or Prospectus, furnish (other than periodic reports required under the Exchange Act) thereto to which Sellers holding a majority of the Holder or group Registrable Securities shall reasonably object in writing within two (2) Trading Days of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;receipt. (i) Prepare and file with the Commission SEC such amendments, including post-post- effective amendments, to the TZE each 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, (ii) Period and prepare and file with the Commission as promptly as practicable any SEC such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424424 under the Securities Act; (iii) if the Registration Statement is not an Automatic Shelf Registration Statement, (iv) respond as promptly as reasonably possible to any comments received from the Commission SEC with respect to a the Registration Statement or any amendment thereto, thereto and as promptly as possible provide each Seller true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (viv) 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 Sellers thereof as set forth in the TZE Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish to Notify the Holder or group of Holders Sellers and each underwriterSeller Counsel as promptly as possible, and (if anyrequested by any such Person) confirm such notice in writing no later than one Trading Day thereafter, without charge, as many conformed copies as of any of the following events: (i) the SEC notifies the Purchaser whether there will be a “review” of any Registration Statement that is not an Automatic Shelf Registration; (ii) the SEC comments in writing on any Registration Statement that is not an Automatic Shelf Registration (in which case the Purchaser shall deliver to each Seller a copy of such Holder or group comments and of Holders all written responses thereto); (iii) any Registration Statement or any 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 declared effective, effective (to the extent required by applicable law, register and qualify Rule 462(e) under the securities covered by such registration statement pursuant to Securities Act is inapplicable); (iv) the securities SEC or blue sky laws of each jurisdiction as shall be 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or other Governmental Authority requests any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of to any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of SEC issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Purchaser receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement become ineligible for inclusion 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 to be delivered pursuant to the Securities Act of the occurrence of so that it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in the light of the circumstances under which they were made, ) not misleading. (d) Use its reasonable best efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of 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, as soon as possible. (e) Furnish to each Seller and Seller Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, and following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the SEC. (f) Promptly deliver to each Seller and Seller 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. The Purchaser hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Sellers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto to the extent permitted by federal and state securities laws and regulations. (g) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the Sellers and each Seller 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 Seller 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 Purchaser shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. (h) Cooperate with the Sellers to facilitate the timely preparation and delivery of certificates representing Registrable Securities (if such shares are certificated) to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Sellers may request. (i) With respect to any event that would cause the Registration Statement not to be continuously effective as required by Section 8.1(b), including for any event described in Section 8.2(c)(vii), as promptly as possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 case of a Prospectus, 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 any reasonable due diligence investigation undertaken by the Holder Sellers in connection with the sale of Registrable Securities, including, without limitation, by making available any documents and information reasonably requested; provided, that the Purchaser will not deliver or group of Holders and the managing underwritermake available to any Seller material, nonpublic information unless such Seller specifically requests in advance to receive material, nonpublic information in writing and, if anyrequested by the Purchaser, such Seller agrees in writing satisfactory to facilitate the timely preparation and delivery of certificates representing securities Purchaser 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 treat 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);information confidentially. (k) Provide a transfer agent Comply with all applicable rules 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date regulations of the closing pursuant to the underwriting agreement, SEC in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretomaterial respects.

Appears in 1 contract

Samples: Stock Purchase Agreement (Capital One Financial Corp)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: 6.2.1 Not less than three Trading Days prior to the initiation filing of each registration and as a Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: shall (ai) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders each Purchaser and any counsel designated by any Purchaser (each, a "PURCHASER COUNSEL"), copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Purchasers and each Purchaser Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the Holder reasonable opinion of each Purchaser Counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or group any such Prospectus or any amendments or supplements thereto to which Purchasers holding a majority of Holders and their respective counsel;the Registrable Securities shall reasonably object. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each 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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within ten days, to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Purchasers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (viv) 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 Purchasers thereof as set forth in the TZE Registration Statement as so amended or in such Prospectus as so supplemented. 6.2.3 Notify the Purchasers of Registrable Securities to be sold and each Purchaser Counsel as promptly as reasonably possible, and (if requested by any such Person) confirm such notice in writing no later than one Trading Day thereafter, of any of the following events: (i) the Commission notifies the Company whether there will be a "review" of any Registration Statement. ; (cii) Furnish the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to the Holder or group each Purchaser a copy of Holders such comments and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders all written responses thereto); (iii) any Registration Statement or any 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 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 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; (fiv) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal Federal or state governmental authority requests any amendment or regulatory authority for amendments or supplements supplement to the TZE any Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement become ineligible for inclusion 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 to be delivered pursuant to the Securities Act of the occurrence of so that it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. 6.2.4 Use its commercially reasonable best efforts to avoid the issuance of or, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement toif issued, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were made not misleading; (h) Prevent or obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of any preliminary Registration Statement, or final Prospectus;(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. (i) Promptly incorporate in a Prospectus supplement 6.2.5 Furnish to each Purchaser and each 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 post-effective amendment such information as the managing underwriter deemed to be incorporated therein by reference, and the Holder or group of Holders agree should be included therein relating all exhibits to the plan extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of distribution such documents with respect the Commission. 6.2.6 Promptly deliver to each Purchaser and each 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 securities, and make all required filings Persons may reasonably request. The Company hereby consents to the use of such Prospectus and each amendment or supplement or post-effective amendment as soon as reasonably practicable after being notified thereto by each of the matters to be incorporated selling Purchasers in such Prospectus supplement or post-effective amendment; (j) Cooperate connection 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 Registrable Securities covered by “cold comfort” letters as the managing underwriter reasonably requests, dated the date of execution of the underwriting agreement such Prospectus and brought down to the closing pursuant to the underwriting agreement; (p) Cooperate with any Holder amendment 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related supplement thereto.

Appears in 1 contract

Samples: Securities Purchase Agreement (Utix Group Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than two Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent reasonably requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries from the Holders as shall be necessary, in the reasonable opinion of respective counsel 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, or Prospectus, furnish thereto to which the Holder or group Holders of Holders copies a majority of all documents prepared to be filed, which documents the Registrable Securities shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object in good faith. (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, ; (ii) prepare and file with cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and, as promptly as 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold as promptly as reasonably possible 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 Holder Registration Statement is proposed to be filed; and (B) with respect to the Registration Statement or group any post-effective amendment, when the same has become effective; (ii) of Holders 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; and each underwriter(iii) of the occurrence of any event that makes the financial statements included in the Registration Statement ineligible for inclusion therein or 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. (d) Use its commercially reasonable efforts to avoid the issuance of, or, if anyissued, 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, furnish to each Holder, without charge, as many at least one conformed copies as such Holder or group of Holders or any underwriter may reasonably request copy of the TZE Registration Statement and any amendment or post-effective 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. (df) FurnishPromptly deliver to each Holder, without chargecharge if requested, such number a copy of Prospectuses, the Prospectus or Prospectuses (including any preliminary Prospectuses, each form of prospectus) and other documents incident thereto, including any each amendment of or supplement thereto as such Persons may reasonably request in connection with resales by the Holder of Registrable Securities. The Company hereby consents to the Prospectus, as use of such Prospectus and each amendment or supplement thereto by each of the Holder or group selling Holders in connection with the offering and sale of Holders may from time to time reasonably request; (e) On or prior to the date on which the TZE Registration Statement is declared effective, to the extent required by applicable law, register and qualify the securities Registrable Securities covered by such registration statement Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each jurisdiction as shall be the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably requested necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Holder or group of HoldersRegistration Statement; provided, howeverPROVIDED, that the Company shall not -------- be required in connection therewith or as a condition thereto to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or to file a general consent to service of process in any such states or jurisdictions where it is not then so subject;jurisdiction. (fh) Notify If requested by the Holder or group Holders, cooperate with the Holders to facilitate the timely preparation and delivery of Holders and certificates representing Registrable Securities to be delivered to a transferee pursuant to the managing underwriterRegistration Statement, if anywhich certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and (if requested) confirm to enable such advice Registrable Securities to be in writing such denominations and provide copies of the relevant documents, registered in such names as soon as reasonably practicable after notice thereof is received by the Company, any such Holders may request. (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of Upon the occurrence of any event as a result of which the Prospectus included in such registration statementcontemplated by Section 3(c)(iii), as then in effectpromptly as reasonably possible, includes an untrue statement of prepare a material fact supplement or omits amendment, including a post-effective amendment, to state the Registration Statement or a material fact required supplement to the related Prospectus or any document incorporated or deemed to be stated incorporated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleadingby reference, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each selling Holder 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of Holders and each underwriter, if any, participating in the disposition shares 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of Section 2.1(e) make available upon reasonable notice at reasonable times and for reasonable periods for inspection Common Stock beneficially owned by a representative appointed by any Holder, by the managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoCommission.

Appears in 1 contract

Samples: Registration Rights Agreement (Hudson Holding Corp)

Registration Procedures. i. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, and subject to the Purchase Agreement (i) furnish to the Holders copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person and not available on the EDGAR system), which documents will be provided for the revixx xx such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel 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 theretothereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith. Should Holders object, or Prospectus, furnish to the Holder or group all liquidated damages and/or penalties set forth herein shall be waived. For purposes of this paragraph objection by Holders copies of all documents prepared any disclosure required to be filed, which documents made under Federal Securities laws as determined by Company's counsel shall not be subject deemed to the review of, the Holder or group of Holders and their respective counsel;be in good faith. (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, ; (ii) prepare and file with cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and attempt in good faith to respond within ten Trading Days, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and, as promptly as reasonably possible, upon request, provide its counsel true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (viv) 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. (c) Furnish Notify the Holders of Registrable Securities as promptly as reasonably possible (and, 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 Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of the Registration Statement and qualify whenever the securities covered by such registration statement pursuant to Commission comments in writing on the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request 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; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder upon request, without charge, at least one conformed copy of 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 following such notification promptly prepare and furnish all exhibits to the extent requested by such Holder (including those previously furnished or group incorporated by reference) promptly after the filing of such documents with the Commission. (f) Promptly deliver to each Holder, without charge, the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Holder may reasonably 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable number efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the registration or qualification) of copies such Registrable Securities for 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 to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction (i) where it is not then so qualified, (ii) that would subject the Company to any material tax in any such jurisdiction where it is not then so subject or (iii) that would require the Company to file a general consent to service of process in any such jurisdiction. (h) 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 pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request so long as such transfers are in compliance with federal and state securities laws. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hii) Prevent or obtain the withdrawal through (v) of any stop order or other order suspending Section 3(c) above to suspend the use of any preliminary or final 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). (ij) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as Comply with all applicable rules and regulations of the managing underwriter and the Commission. (k) The Company may require each selling Holder or group of Holders agree should be included therein relating to furnish to the plan Company a certified statement as to the number of distribution 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 them specified immediately above, and as to the Registrable Securities of any particular Holder, that such Holder respond to any specific written comments from the SEC 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Shares and Warrant Purchase Agreement (Xfone Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the reasonable review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel 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, or Prospectus, furnish thereto to which the Holder or group Holders of Holders copies a majority of all documents prepared to be filed, which documents the Registrable Securities shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object in good faith. (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, ; (ii) prepare and file with cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and, as promptly as 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold as promptly as reasonably possible (and, in the Holder or group case of Holders (i)(A) below, not less than two Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of the Registration Statement and qualify whenever the securities covered by such registration statement pursuant to Commission comments in writing on the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request other Federal or state governmental authority during the Effectiveness Period of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or Proceedings for that purpose known to the initiation, or written threatened initiation, of any proceedings for such purposesCompany; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder, without charge, at least one conformed copy of 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; PROVIDED, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (h) If requested by the Holders, reasonably cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates shall be free, but only to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply in all material respects with all applicable rules and regulations of 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);Commission. (k) Provide The Company may require each selling Holder, as a transfer agent and registrar for all Securities registered pursuant condition 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount inclusion of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting 's Registrable Securities in the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and dispositive control over 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 Shares and covering such matters of the type customarily covered by “cold comfort” letters other information as the managing underwriter Company 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 requests in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) preparation of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoRegistration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Ultimate Software Group Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel 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, or Prospectus, furnish thereto to which the Holder or group Holders of Holders copies a majority of all documents prepared to be filed, which documents the Registrable Securities shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object in good faith. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within ten Trading Days, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and, as promptly as 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold as promptly as reasonably possible (and, in the Holder or group case of Holders (i)(A) below, not less than two Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of the Registration Statement and qualify whenever the securities covered by such registration statement pursuant to Commission comments in writing on the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request 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; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder, without charge, at least one conformed copy of 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; PROVIDED, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (h) 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 pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each selling Holder 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter Commission, the person thereof that has voting and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of dispositive control over the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoShares.

Appears in 1 contract

Samples: Registration Rights Agreement (Us Dataworks Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act filing of a Registration Statement or any related Prospectus or any amendment, or not less than one Trading Day for any supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, the Company shall (i) furnish to the Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of, of the Holder or group for up to three Trading Days, 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 Holders and their respective counsel;, to conduct a reasonable investigation within the meaning of the Securities Act. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each 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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within ten days, to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (viv) 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 Holder thereof as set forth in the TZE Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holder and the Holder's Counsel of the Registrable Securities to be sold as promptly as reasonably possible, and (if requested by any such Person) confirm such notice in writing no later than one Trading Day thereafter, of any of the following events: (i) the Commission notifies the Company whether there will be a "review" of any Registration Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to the Holder or group a copy of Holders such comments and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders all written responses thereto); (iii) any Registration Statement or any 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 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 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; (fiv) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal Federal or state governmental authority requests any amendment or regulatory authority for amendments or supplements supplement to the TZE any Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement become ineligible for inclusion 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 to be delivered pursuant to the Securities Act of the occurrence of so that it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of or, and following such notification promptly prepare and furnish if issued, obtain the withdrawal of (i) any order suspending the effectiveness of 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, as soon as possible. (e) Furnish to the Holder and the Holder's 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 group 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 Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to the Holder and the Holder's 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. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by the Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (g) In the time and manner required by each Trading Market on which the Company's shares are listed, (i) 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 on which the Company's shares are listed as soon as possible thereafter; (iii) provide to the Holder evidence of such listing; and (iv) maintain the listing of such Registrable Securities on such Trading Market or another Eligible Market. (h) Prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify or cooperate with a the Holder and the Holder's 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 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. (i) Cooperate with the Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as the Holder may request. (j) Upon the occurrence of any event described in Section 7.2(c)(vii), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 Cooperate with any reasonable due diligence investigation undertaken by the Holder in connection with the sale of Registrable Securities, including, without limitation, by making available any documents and registrar for all Securities registered pursuant information; provided that the Company will not deliver or make available to the TZE Registration Statement and a CUSIP number for all such securitiesHolder material, nonpublic information unless the Holder specifically requests in each case not later than the effective date of such registration;advance to receive material, nonpublic information in writing. (l) Cause Comply with all such securities registered hereunder to be listed on each securities exchange on which the same 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 applicable rules 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date regulations of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoCommission.

Appears in 1 contract

Samples: Securities Acquisition and Investor Rights Agreement (Medirect Latino Inc)

Registration Procedures. In connection with the case Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of each registration effected by the Company Registrable Securities have requested that any Registrable Securities be registered pursuant to this Article IIAgreement, the Company will shall use its commercially reasonable best efforts to effect such the registration to permit and the sale of securities such Registrable Securities in accordance with the intended method or methods of distribution thereof disposition thereof, and pursuant thereto the Company shall 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 topossible: (a) Prepare prepare in accordance with the required TZE Securities Act and all applicable rules and regulations promulgated thereunder and file with the Commission a Registration Statement, including and all exhibits amendments and financial statements required pursuant supplements thereto and related prospectuses as may be necessary to the comply with applicable securities laws, with respect to such Registrable Securities Act and use commercially reasonable efforts to be filed therewith, and cause such Registration Statement to become effective (provided that at least five (5) Business Days before filing such registration statement, a Registration Statement or prospectus or any amendments or supplements thereto, or Prospectus, the Company shall furnish to counsel selected by the Holder or group of Holders Applicable Approving Party copies of all such documents prepared proposed to be filed, which documents shall be subject to the review of, the Holder or group and comment of Holders and their respective such 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 Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any 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); (db) Furnish, without charge, such number notify each holder of Prospectuses, including any preliminary Prospectuses, and other documents incident thereto, including any amendment Registrable Securities of or supplement to the Prospectus, as the Holder or group of Holders may from time to time reasonably request; (eA) On or prior to the date on which the TZE Registration Statement is 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, initiation of any proceedings for such purposes; that purpose, (iiB) of the receipt by the Company or its counsel of any notification with respect to the suspension of the qualification of the securities so registered Registrable Securities for offering or sale in any jurisdiction or the initiation, initiation or written threatened initiation, threatening of any proceeding for such purpose; , and (C) the effectiveness of each Registration Statement filed hereunder; (c) prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be Registrable Securities (but not in any event before the expiration of any longer period required under the Securities Act or, if such Registration Statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement; (d) furnish to each seller of Registrable Securities thereunder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller; (e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act; (f) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 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 prospectus relating to the TZE Registration Statement thereto is required to be delivered pursuant to under the Securities Act Act, of the occurrence happening of any event as a result of which the Prospectus prospectus included in such registration statement, as then in effect, includes Registration Statement contains an untrue statement of a material fact or omits to state a material any fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and following and, at the request of any such notification seller, the Company promptly prepare shall prepare, file with the Commission and furnish to the Holder or group of Holders each such seller a reasonable number of copies of a supplement to, or an amendment of, to such Prospectus as may be necessary prospectus so that, as thereafter delivered to the purchasers of such securitiesRegistrable Securities, such Prospectus prospectus shall not contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or 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 the Company are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA; (i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement; (j) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request); (k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement; (l) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made made, not misleading; (hm) Prevent otherwise comply with all applicable rules and regulations of the Commission; (n) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Company to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included; (o) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, the Company shall use its commercially reasonable efforts promptly to obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectussuch order; (ip) Promptly incorporate in a Prospectus supplement use its commercially reasonable efforts to cause such Registrable Securities covered by such Registration Statement to be registered with or post-effective amendment approved by such information other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities; (q) cooperate with the holders of Registrable Securities covered by the Registration Statement and 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 underwriteragent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) 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, under the Registration Statement 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 underwriteragent, if any, or such holders may request; (r) cooperate with each holder of Registrable Securities covered by the Registration Statement and each underwriter or agent participating in the disposition of such securities Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.FINRA; (qs) Make available if such Registration includes an underwritten Public Offering, use its commercially reasonable efforts to its security holdersobtain a cold comfort letter from the Company’s independent public accountants and addressed to the underwriters, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) in customary form and covering such matters of the Securities Acttype customarily covered by cold comfort letters as the underwriters in such Registration reasonably request; (rt) In connection with any underwritten offering meeting the requirements of Section 2.1(e) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by provide a representative appointed by any Holder, by the managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all legal opinion of the Company’s officersoutside counsel, directors and employees and dated the independent public accountants who have certified effective date of such Registration Statement (and, if such Registration includes an underwritten Public Offering, dated the Company’s financial statements to make themselves available to discuss the business date of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibilityclosing under the underwriting agreement), provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to the Registration Statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such information 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 Holder is aware; or (iv) such information is independently developed by such Personunderwriters; and (su) In connection with any underwritten offering meeting the requirements of Section 2.1(e), cause the senior executive officers of if the Company does not pay the filing fee covering the Registrable Securities at the time an automatic shelf registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretosold.

Appears in 1 contract

Samples: Registration Rights Agreement (Heico Corp)

Registration Procedures. In connection with the case obligations of each registration effected by the Company to effect or cause the registration of any Registrable Securities pursuant to the terms and conditions of this Article II, the Company will 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 toAgreement: (a) Prepare The Company shall prepare and file with the required TZE Commission a Registration StatementStatement on the appropriate form under the Securities Act, including which form shall comply as to form in all exhibits material respects with the requirements of the applicable form and include all financial statements required pursuant to by the Securities Act Commission to be filed therewith, and before use its best efforts to cause such Registration Statement to become effective and remain effective in accordance with the provisions of this Agreement; provided that, at least three Business Days prior to the initial filing such registration statementof the Registration Statement, or any amendments or supplements thereto, or Prospectus, the Company shall furnish to Holders' Counsel a draft copy of the Holder or group of Holders copies of all documents prepared Registration Statement proposed to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;. (ib) Prepare The Company shall promptly prepare and file with the Commission such amendments, including amendments and post-effective amendments, amendments to the TZE Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective for as long as such registration is required to remain effective pursuant to the Registrable Securities for terms hereof; shall cause the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to or filing under the terms of this Agreement)Exchange Act, and, as so supplemented or amendedsupplemented, to be filed pursuant to Rule 424424 under the Securities Act, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, if required; and (v) shall 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 TZE such 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 such Registration Statement or supplement to the TZE Registration StatementProspectus. (c) Furnish The Company shall promptly 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 Holders or any 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) FurnishHolder, without charge, such reasonable number of Prospectusesconformed copies of such Registration Statement and any post-effective amendment thereto and such reasonable number of copies of the Prospectus (including each preliminary Prospectus) and any amendments or supplements thereto, including any preliminary Prospectuses, documents incorporated by reference therein and such other documents incident thereto, including any amendment as such Holder may reasonably request in order to facilitate the public sale or other disposition of or supplement to the Prospectus, as the Holder or group of Holders may from time to time reasonably request;Registrable Securities being sold by such Holder. (ed) On The Company shall, on or prior to the date on which the TZE a Registration Statement is declared effective, if the Common Stock is not traded on a securities exchange that provides for secondary market trading in substantially all states and jurisdictions of the United States, (i) use its best efforts to the extent required by applicable law, register and or qualify the securities Registrable Securities covered by such registration statement pursuant to Registration Statement under the securities or "blue sky sky" laws of each state or jurisdiction as shall in which such registration or qualification is necessary; (ii) do any and all other acts and things required by such "blue sky" laws which may be reasonably requested necessary to enable such Holder to consummate the disposition of such Registrable Securities owned by such Holder in such jurisdictions; (iii) use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Holder period in which the Registration Statement is required to be kept effective; and (iv) use reasonable efforts to do any and all other acts or group things required by such "blue sky" laws to enable the disposition in such jurisdictions of Holderssuch Registrable Securities; provided, however, that the Company shall not be required in connection therewith or as a condition thereto (x) to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(d) or (y) to file a any general consent to service of process in any process. (e) The Company shall use its best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such states other governmental agencies or jurisdictions where it is not then so subject;authorities as may be necessary by virtue of the business and operations of the Company to enable the Holders to consummate the disposition of such Registrable Securities. (f) Notify the Holder or group of Holders and the managing underwriter, if any, The Company shall promptly notify Holders' Counsel and (if so requested) confirm such advice notice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Companywriting, (i) when the TZE Registration Statement, a Prospectus or any Prospectus supplement or post-effective amendment or supplement thereto, has been filed and, with respect to a Registration Statement or becomes any post-effective and amendment, when the applicable Prospectus same has been filed; and become effective, (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory securities authority for amendments or supplements to the TZE a Registration Statement or the Prospectus or for additional information; information after the Registration Statement has become effective, (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement or any order by the Commission initiation or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, threatening of any proceedings for such purposes; that purpose, (iiiv) of the receipt issuance by the Company any state securities commission or other regulatory authority of any notification with respect to order suspending the suspension qualification or exemption from qualification of any of the qualification Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, and (v) of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence happening of any event as a result which requires the making of which the Prospectus included any changes in such registration statement, as then in effect, includes an untrue statement of a material fact Registration Statement or omits to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which Prospectus so that they were made, not misleading, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus shall will not contain an any 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 light of the circumstances under which they were made not misleading;; and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such Prospectus or make an appropriate filing under the Exchange Act so that, as thereafter deliverable to the purchasers of such Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (hg) Prevent or The Company shall promptly use its best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement and, if one is issued, use its best efforts to obtain the withdrawal of any stop order or other order suspending the use effectiveness of a Registration Statement at the earliest possible moment. (h) The Company shall, as promptly as practicable after the filing with the Commission of any preliminary or final Prospectus;document which is incorporated by reference into a Registration Statement, deliver a copy of each such document (in the form in which it was incorporated) to Holders' Counsel. (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 The Company shall 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 (which shall not bear any restrictive legendslegends unless required under applicable law) representing securities sold under a Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter such Holders may request at least two Business Days and keep available and make available to the Company's transfer agent prior to the effectiveness of such Registration Statement a supply of such certificates. (j) The Company shall promptly make available to each Holder and any sale attorney, accountant or other agent or representative retained by any such Holder (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of securities the Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in any underwritten offering connection with such Registration Statement; provided that meets the requirements obligations of the Company under this Section 2.1(e);4(j) are conditioned upon the execution by such Inspectors of a confidentiality agreement in form reasonably satisfactory to the Company. (k) Provide The Company shall use its best efforts to cause the Registrable Securities included in a transfer agent and registrar for all Securities registered pursuant to the TZE Registration Statement and a CUSIP number for all such securitiesto be (i) listed on each securities exchange, in each case not later than if any, on which the effective date Company's Common Stock is then listed, or (ii) authorized to be quoted and/or listed, as applicable, on any other automated quotation system on which the Common Stock is then listed, including the National Association of such registration;Securities Dealers, Inc. Automated Quotation System ("Nasdaq") or the National Market System of Nasdaq. (l) Cause all such securities registered hereunder to be listed on The Company shall cooperate with each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 Registrable Securities and their respective counsel Holders' Counsel in connection with any filings required to be made with the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc.;Inc. ("NASD"); provided that any and all fees associated with such NASD filings shall be the sole responsibility of such Holder. (qm) Make available The Company shall, during the period when the Prospectus is required to its security holdersbe delivered under the Securities Act, as soon as reasonably practicablepromptly file all documents required to be filed with the Commission pursuant to Sections 13(a), an earnings statement satisfying the provisions of Section 11(a13(c), 14 or 15(d) of the Securities Exchange Act; (r) In connection with any underwritten offering meeting the requirements of Section 2.1(e) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by any . Each Holder, upon receipt of any notice (a "Suspension Notice") from the Company of the happening of any event of the kind described in Section 4(f)(v), shall forthwith discontinue disposition of the Registrable Securities pursuant to the Shelf Registration Statement covering such Registrable Securities until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(f) or until it is advised in writing (the "Advice") by the managing underwriter Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by any attorneyreference in the Prospectus, accountant or other agent retained and, if so directed by any the Company, such Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice; provided, however, that the Company shall not give a Suspension Notice until after the Shelf Registration Statement has been declared effective and shall not give more than two Suspension Notices during any period of twelve consecutive months and in no event shall the period from the date on which any Holder receives a Suspension Notice to the date on which any Holder receives either the Advice or copies of the supplemented or amended Prospectus contemplated by Section 4(f) (the "Suspension Period") exceed 45 days; and provided, further, that in the event that the Company gives two Suspension Notices during any period of twelve consecutive months, such underwritertwo Suspension Periods shall not, all pertinent financial in the aggregate, exceed 60 days. In the event that the Company shall give any Suspension Notice, the Company shall use its best efforts and other records, corporate documents take such actions as are reasonably necessary to render the Advice and properties end the Suspension Period as promptly as practicable. If any Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, and cause all of then such Holder shall have the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements right to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless require (i) the release insertion therein of language, in form and substance reasonably satisfactory to such Holder, to the effect that the holding by such Holder of such information securities is required not to be construed as a recommendation by law; such Holder of the investment quality of the Company's securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company, or (ii) in the event that such information reference to such Holder by name or otherwise is or becomes publicly known other than through a breach of this not required by the Securities Act or any other agreement; (iii) such information is similar Federal or becomes available state "blue sky" statute and the rules and regulations thereunder then in force, the deletion of the reference to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoHolder.

Appears in 1 contract

Samples: Registration Rights Agreement (Winstar Communications Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of a Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, or Prospectus, furnish to the selling Holder or group of Holders copies of all such documents prepared proposed to be filedfiled (other than those incorporated by reference). Notwithstanding the foregoing, which documents the Company shall not be subject required to furnish to the review ofHolders any prospectus supplement being prepared and filed solely to name new or additional selling securityholders unless any such Holder is named in such prospectus supplement. The Company shall duly consider any comments made by a Holder and received by the Company not later than two Trading Days prior to the filing of the Registration Statement, the Holder or group of Holders and their respective counsel;but shall not be required to accept any such comments to which it reasonably objects. (b) Subject to Section 6(c), (i) Prepare prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a each Registration Statement or any amendment theretothereto and, as promptly as reasonably possible provide each selling Holder true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to such Holder as a selling stockholder but not any comments that would result in the disclosure to such Holder of material and non-public information concerning the Company; and (viv) 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 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 each Registration Statement. (c) Furnish Notify the Holders as promptly as reasonably possible (and, 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 (but only to the Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment extent notice is required under Section 3(a) above) 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (in which case the Company shall not be required in connection therewith or provide true and complete copies thereof and all written responses thereto to each Holder that pertain to such Holder as a condition thereto to qualify to do business selling stockholder or to file a general consent to service the Plan of process in any such states or jurisdictions where it is Distribution, but not then so subject; (f) Notify information which the Holder or group of Holders Company reasonably believes would constitute material and the managing underwriter, if any, non-public information); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to each Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been fileddeclared effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; information that pertains to a Holder as a selling stockholder or the Plan of Distribution; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as or passage of time that makes the financial statements included or incorporated by reference in a result of which the Prospectus included Registration Statement ineligible for inclusion or incorporation by reference therein or any statement made in such registration statementRegistration 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 such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made, ) not misleading; and (vi) of the occurrence or existence of any pending 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 remain confidential to each Holder until such information otherwise becomes public, unless disclosure by such Holder is required by law; provided, further, that notwithstanding such Holder’s agreement to keep such information confidential, such Holder makes no acknowledgement that any such information is material, non-public information. (d) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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) Furnish to the selling Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto 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; provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the XXXXX system. (f) Promptly deliver to the selling Holder, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. Subject to Section 6(c) hereof, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by the selling Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (g) Prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holder 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 those jurisdictions within the United States as such 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 the Registration Statements; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (h) Cooperate with the selling Holder to facilitate the timely delivery of the Registrable Securities in book-entry form to a transferee pursuant to the Registration Statements, free, to the extent permitted by the Purchase Agreement and under applicable law, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such name as such Holder may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder affected Registration Statements or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, such no Registration Statement nor any Prospectus shall not 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 case of any Prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made made) not misleading;. (hj) Prevent If required by the FINRA Corporate Financing Department or obtain any similar entity, promptly effect a filing with FINRA pursuant to FINRA Rule 5110 with respect to the withdrawal public offering contemplated by resales of any stop order or other order suspending securities under the Registration Statement (an “Issuer Filing”), and pay the filing fee required by such Issuer Filing. (k) Following expiration of the Restricted Period, if requested by the selling Holder, the Company shall use its reasonable efforts to engage an underwriter with respect to the sale of any preliminary or final Prospectus;the Registrable Securities under the Registration Statement and in connection therewith: (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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter under an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in usual and customary form, scope and substance, with the managing underwriter of the Underwritten Offering pursuant to 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 counselRegistrable Securities are being offered; (oii) In connection with any underwritten offering meeting use reasonable efforts to obtain: (A) at the requirements time of Section 2.1(e) pursuant to effectiveness of the TZE Registration Statement, obtain for delivery to the Company and the managing underwriter, with copies to any Holder or group of HoldersStatement covering such Registrable Securities, a “cold comfortcomfort letterletter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by “cold comfortcomfort lettersletters as the managing underwriter underwriters may reasonably requestsrequest; and (B) at the time of any underwritten sale pursuant to such Registration Statement, a “bring-down comfort letter,” dated as of the date of execution such sale, from the Company’s independent certified public accountants covering such matters of the underwriting agreement and brought type customarily covered by “bring-down to comfort letters” as the closing pursuant to the underwriting agreementunderwriters may reasonably request; (piii) 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 Underwritten Offering, use reasonable efforts to be made with obtain an opinion or opinions addressed to the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of Section 2.1(e) make available upon reasonable notice at reasonable times underwriter or underwriters in customary form and scope from counsel for reasonable periods for inspection by a representative appointed by any Holder, by the managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the Holder is aware; or (iv) such information is independently developed by such Person; and (siv) In connection with any underwritten offering meeting use reasonable efforts to participate, to the requirements of Section 2.1(e), cause the senior executive officers of the Company to participate in the customary “road show” presentations that may be reasonably extent requested by the managing underwriter, in efforts extending for no more than two (2) days scheduled by such managing underwriter and reasonably acceptable to the Company’s senior management, to sell the Registrable Securities being offered pursuant to such Required Registration (including participating during such period in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto“roadshow” meetings with prospective investors).

Appears in 1 contract

Samples: Registration Rights Agreement (Juno Therapeutics, Inc.)

Registration Procedures. In the case of each registration effected by the Company If and whenever any Registrable Securities are to be registered pursuant to the provisions of this Article IIAgreement, the Company will shall use its reasonable best efforts to effect such the registration to permit and the sale of securities such Registrable Securities in accordance with the intended method or methods of distribution thereof disposition thereof, and pursuant thereto the Company shall as expeditiously soon as reasonably practicable practicable: (a) subject to Section 2 , prepare and will keep file with the Holders advised on Commission a reasonably current basis as Registration Statement with respect to the initiation of each registration such Registrable Securities and as to the completion thereof. At its expense, the Company will use its reasonable best efforts to: (a) Prepare the required TZE to cause such Registration Statement, including all exhibits and financial statements required pursuant Statement to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counselbecome effective; (ib) Prepare prepare and file with the Commission such amendments, including post-effective amendments, amendments and supplements to the TZE such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the for a period of not less than 90 days, or if earlier, until all of such Registrable Securities for the Effectiveness Period, (ii) prepare have been disposed of and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all such 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 such Registration Statement.; (c) Furnish furnish to each selling holder of Registrable Securities such number of copies of the Holder or group of Holders Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto (in each underwriter, if any, without charge, as many conformed copies case including all exhibits and documents incorporated by reference therein) and such other documents as such Holder or group of Holders or any underwriter seller may reasonably request in order to facilitate the disposition of the TZE Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein Registrable Securities owned by reference and all exhibits (including those incorporated by reference)such seller; (d) Furnishnotify each selling holder of such Registrable Securities, 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement thereto is required to be delivered pursuant to under the Securities Act Act, of the occurrence happening of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes Registration Statement contains an untrue statement of a material fact or omits to state a material any fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and following and, at the request of any such notification promptly holder, the Company shall prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, to such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securitiesRegistrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state a material any 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; (he) Prevent advise the holders of Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the withdrawal issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or other to obtain its withdrawal at the earliest possible moment if such stop order suspending the use of any preliminary or final Prospectusshould be issued; (if) 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 otherwise use its reasonable best efforts to the plan of distribution with respect to such securities, and make take 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 other steps necessary to effect the offer and sale registration 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Registrable Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretohereby.

Appears in 1 contract

Samples: Registration Rights Agreement (Petrosonic Energy, Inc.)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of each Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statementthe Company shall, or any amendments or supplements thereto, or Prospectus, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 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 shall reasonably and in good faith object, provided, the Holder or group Company is notified of such objection in writing no later than 3 Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 Holder or group 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 (which notice shall, pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 the Registration Statement or Prospectus; provided that any 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 Holders make no acknowledgement that any such information is material, non-public information. Furnish to each Holder, 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (e) Promptly deliver to each Holder, 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. 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. (f) Use commercially reasonable efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (g) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (h) Upon the occurrence of any event contemplated by this Section 3, as promptly as reasonably 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 toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made 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. (hi) Prevent or Comply with all applicable rules and regulations of the Commission. (j) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) 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 Registrable Securities 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 jurisdiction, at the requirements of Section 2.1(e);earliest practicable moment. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require, at any time prior to the TZE Registration Statement and third Trading Day prior to the Filing Date, each Holder to furnish to the Company a CUSIP statement as to the number for all of shares of Common Stock beneficially owned by such securitiesHolder and, 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 same securities issued if requested by the Company are then listed; (m) In connection with any underwritten offering meeting Commission and the requirements of Section 2.1(e), enter into Holder is not 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 underwritingindividual, the indemnification and contribution controlling person thereof, within three Trading days of the Company's request. 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 Holder information within three Trading Days of the Company's request, any partial liquidated damages that are accruing as to the Holders at such time shall be several tolled and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and substance, which opinion shall be reasonably satisfactory Event that may otherwise occur as 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 solely because 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as delay shall be necessary to enable them to exercise their due diligence responsibilitysuspended, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Accupoll Holding Corp)

Registration Procedures. In connection with the case registration obligations of each registration effected by the Company pursuant to this Article IIunder Section 2 hereof, during the Effectiveness Period, the Company will use its reasonable best efforts to effect such registration to permit shall: (a) Prepare and file with the SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act available for the sale of securities the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable thereof, 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 to cause each such Registration Statement, including all exhibits Statement to become effective and financial statements required pursuant to the Securities Act to be filed therewith, and remain effective as provided herein; provided that before filing such registration statement, any Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectusthereto with the SEC, furnish to the Holder or group Initial Purchasers and the Special Counsel of Holders such offering, if any, copies of all such documents prepared proposed to be filed, which documents shall be subject filed at least three (3) Business Days prior to the review of, the Holder filing of such Registration Statement or group of Holders and their respective counsel;amendment thereto or Prospectus or supplement thereto. (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 TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with applicable period specified in Section 2(a); cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)prospectus supplement, and, and as so supplemented or amended, to be filed pursuant to Rule 424424 (or any similar provisions then in force) under the Securities Act; and use its reasonable best efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented. (c) As promptly as practicable give notice to the Notice Holders, the Initial Purchasers and the Special Counsel, (ivi) respond as promptly as reasonably possible when any Prospectus, prospectus supplement, Registration Statement or post-effective amendment to any comments received from a Registration Statement has been filed with the Commission SEC and, with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment theretoamendment, 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 when 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 same has been 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the Commission or any request by the Commission SEC or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE any Registration Statement or the related Prospectus or for additional information; , (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the TZE any Registration Statement or any order by the Commission initiation or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, threatening of any proceedings for such purposes; that purpose, (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction or the initiation, initiation or written threatened initiation, threatening of any proceeding for such purpose, (v) of the occurrence of, but not the nature of or details concerning, 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 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 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 Purchasers of the withdrawal of any such order. (e) As promptly as practicable furnish to each Notice Holder, the Special Counsel and the Initial Purchasers, upon request and without charge, at least one (1) conformed copy of the Registration Statement and any amendment thereto, including exhibits and all documents incorporated or deemed to be incorporated therein by reference. (f) During the Effectiveness Period, deliver to each Notice Holder, the Special Counsel, if any, and the Initial Purchasers, 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 (iiiexcept during such periods that a Deferral Notice is outstanding and has not been revoked) at any time when a Prospectus relating to the TZE 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 a Registration Statement is required Statement, use its reasonable best efforts to register or qualify or cooperate with the 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 writing (which request may be delivered 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 Act pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable 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 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 the Prospectus included in such registration statement, as then in effect, includes an any Registration Statement shall contain any untrue statement of a material fact or omits 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 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 following such notification the related Prospectus: (i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and furnish file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the Holder related Prospectus or group of Holders a reasonable number of copies of a supplement to, any document incorporated therein by reference or an amendment of, file any other required document that would be incorporated by reference into such Registration Statement and Prospectus as may be necessary so that, as thereafter delivered to the purchasers of that such securities, such Prospectus shall Registration Statement does not contain an any 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, 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 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 (hii) Prevent or obtain give notice to the withdrawal 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 stop 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 required 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 Company may, without incurring any obligation to pay liquidated damages pursuant to Section 2(e), 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 such shorter period of time as is specified in such second notice. (i) 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 other order suspending 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 preliminary or final Prospectus; prospectus referred to in this Agreement), (iiii) Promptly incorporate in a Prospectus supplement or post-effective amendment 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 managing underwriter 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 Holder or group of Holders agree should be included therein relating other parties entitled thereto by Special Counsel. Any person legally compelled to disclose any such confidential information made available for inspection shall provide the plan of distribution Company with respect to such securities, and make all required filings prompt prior written notice of such Prospectus supplement requirement so that the Company may seek a protective order 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;other appropriate remedy. (j) Comply with all applicable rules and regulations of the SEC and make generally available to its security holders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 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 Company commencing after the effective date of a Registration Statement, which statements shall 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 the each Notice Holder or group of Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities 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 appropriate certificates for the Registrable Securities 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 such securities registered hereunder to be listed on each securities exchange on which the same securities issued by the Company are then listed;Company. (m) In connection with any underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement Cooperate and assist 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 AuthorityNational Association of Securities Dealers, Inc.; (qn) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless Upon (i) the release filing of such information is required by law; the Initial Shelf Registration Statement and (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 effectiveness of the Company to participate in Initial Shelf Registration Statement, announce the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitatesame, cooperate with, and participate in each proposed offering contemplated herein case by release to Reuters Economic Services and customary selling efforts related theretoBloomberg Business News.

Appears in 1 contract

Samples: Registration Rights Agreement (NPS Pharmaceuticals Inc)

Registration Procedures. In the case of each registration effected by the Company pursuant to this Article II, the The Company will use its commercially reasonable best efforts in good faith to effect such promptly the registration of the Registrable Securities under the Securities Act and to permit the sale public offering and resale of securities the Registrable Securities in accordance with the intended method or methods of distribution thereof disposition thereof, and, in connection therewith, the Company, as expeditiously as shall be 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 expensepossible, the Company will use its reasonable best efforts towill: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their 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 Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable a Registration Statement with respect to the Registrable Securities, and thereafter use its commercially reasonable efforts to cause such registration statement to become and remain effective until the date that is two years after the date such Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by such Registration Statement have been sold (the "Effectiveness Period"); PROVIDED, HOWEVER, that before filing such Registration Statement or any additional registration statements amendments thereto, the Company will furnish to the Holders and their counsel copies of all such documents proposed to be filed. (b) prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus included in such Registration Statement as may be necessary in order or advisable to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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 TZE such Registration Statement or as may be necessary to keep such Registration Statement effective and current 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.Effectiveness Period; (c) Furnish to prepare and file with the Holder or group Commission additional Registration Statements if the number of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or Registrable Securities at any underwriter may reasonably request time exceeds 100% of the TZE number of shares of Common Stock then registered in a 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);within 30 days of such occurrence. (d) Furnish, without charge, furnish to each seller of Registrable Securities such number of Prospectusescopies of such Registration Statement, each amendment and supplement thereto (in each case including any all exhibits thereto), the prospectus included in such Registration Statement (including each preliminary Prospectusesprospectus) in conformity with the requirements of the Securities Act, and such other documents incident thereto, including as any amendment such seller may reasonably request in order to facilitate the disposition of or supplement to the Prospectus, as the Holder or group of Holders may from time to time reasonably requestRegistrable Securities held by such seller; (e) On enter into such customary agreements and take all such other customary actions in connection therewith in order to expedite or prior facilitate the disposition of the Registrable Securities; (f) use its commercially reasonable efforts to the date on which the TZE Registration Statement is declared effective, to the extent required by applicable law, register and qualify the securities Registrable Securities covered by such registration statement pursuant to the under such securities or blue sky Blue Sky laws of each jurisdiction such jurisdictions as any seller shall reasonably request and do any and all such other acts and things as may be reasonably requested necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities held by the Holder or group of Holderssuch seller; providedPROVIDED, however, 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional informationjurisdiction; (g) Promptly notify the Holder or group each seller of Holders (i) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) Registrable Securities at any time when a Prospectus prospectus relating to the TZE Registration Statement thereto is required to be delivered pursuant to under the Securities Act of the occurrence happening of any event as a result of which the Prospectus prospectus included in such registration statementa Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, then existing and use its reasonable efforts to amend or supplement such prospectus in order to cause such prospectus not misleading, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus shall not contain an include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made not misleading;then existing; and (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 reasonable efforts to the plan of distribution with respect to such securities, and make cause 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 Registrable 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 such securities registered hereunder to be listed on each such securities exchange on which similar securities of the same Company are then listed and to be qualified for trading on each system on which the securities issued by the Company are then listed; (m) In connection with from time to time qualified. Notwithstanding the foregoing, if at any underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement in form reasonably necessary time or from time 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated time after the date of effectiveness of the closing pursuant to the underwriting agreement, in customary form, scope and 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 the Company notifies the Holders in writing of the existence of a Potential Material Event, the Holders shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Company and the managing underwriterRegistrable Securities, 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 time of the type customarily covered by “cold comfort” letters as giving of notice with respect to a Potential Material Event until such Holders receive written notice from the managing underwriter reasonably requests, dated the date of execution of the underwriting agreement and brought down Company that such Potential Material Event either has been disclosed to the closing pursuant to public or no longer constitutes a Potential Material Event; PROVIDED, HOWEVER, that the underwriting agreement; Company may not so suspend the right of such Holders of Registrable Securities for more than two twenty (p20) Cooperate with any Holder or group of Holders and each underwriter, if any, participating Business Day periods in the disposition aggregate during any period of such securities and their respective counsel in connection with any filings 12 consecutive months, during the periods the Registration Statement is required to be made with in effect ("Permitted Suspension Period") and; PROVIDED, FURTHER, that the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of Section 2.1(e) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed Effectiveness Period shall be extended by any Holder, by the managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.Permitted Suspension Period;

Appears in 1 contract

Samples: Registration Rights Agreement (Able Laboratories Inc)

Registration Procedures. In connection with Parent’s registration obligations hereunder, Parent shall: 2.1 Prepare and file with the case of each registration effected by SEC on or prior to the Company pursuant Filing Date, a Registration Statement on Form S-3 (or if Parent is not then eligible to this Article II, register for resale the Company will use its reasonable best efforts to effect Registrable Securities on Form S-3 such registration to permit the sale of securities shall be on another appropriate form in accordance with the intended Securities Act and the rules and regulations promulgated thereunder) in accordance with the method or methods of distribution thereof as expeditiously as reasonably practicable and will keep the Holders advised described 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: Annex A hereto (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewithexcept if otherwise directed by Xxxxxx), and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish use commercially reasonable efforts to cause the Holder or group of Holders copies of all documents prepared Registration Statement to be filed, which documents shall be subject to the review of, the Holder or group of Holders become effective and their respective counsel;remain effective as provided herein. (i) Prepare and file with the Commission SEC 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 (subject to Section 2.12) as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any SEC such additional registration statements as may be necessary Registration Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible to any comments received from the Commission SEC with respect to a the Registration Statement or any amendment thereto, thereto and promptly provide the Holders true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. 2.3 Promptly notify the Holders of Registrable Securities (ci)(A) 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 Holders when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 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 reasonably requested by the Holder or group of Holdersfiled; 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (iB) when the TZE SEC notifies Parent whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on such Registration Statement, and if requested by such Holders, furnish to them a copy of such comments and Parent’s responses thereto; and (C) with respect to the Registration Statement or any amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) of any written comments by the Commission or any request by the Commission SEC 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; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) of the receipt by the Company Parent of any notification with respect to the suspension of the qualification or exemption from qualification of any of the securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result 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 which the Prospectus included in such registration statementRegistration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. 2.4 Use commercially reasonable efforts to avoid the issuance of, or, if issued, 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. 2.5 If requested by the Holder, on behalf of Designated Holders, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as Parent 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 Parent has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment. 2.6 Furnish to each Holder, without charge and upon request, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and, to the extent requested by such Person, all documents incorporated or deemed to be incorporated therein by reference, and following all exhibits (including those previously furnished or incorporated by reference) promptly after the filing of such notification documents with the SEC. 2.7 Promptly deliver to each Holder, 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 Parent 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. 2.8 Prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the 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, Parent shall in no event be required to (x) qualify to do business in any state where it is not then qualified or (y) take any action that would subject it to tax or to the general service of process in any such state where it is not then subject, or (z) comply with state securities or “blue sky” laws of any state for which registration by coordination is unavailable to Parent. 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. 2.10 Upon the occurrence of any event contemplated by Section 2.3(v), promptly prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in the light of the circumstances under which they were made made, not misleading;. (h) Prevent 2.11 Use commercially reasonable efforts to remain trading on a Trading Market and, as applicable, cause all Registrable Securities relating to the Registration Statement to be listed on the Trading Market on which the Common Stock is then listed or obtain traded; provided, however, that nothing in this Section 2.11 shall require the withdrawal Company to continue to list its Common Stock on the Nasdaq Stock Market and be a reporting company pursuant to Section 13 of the Exchange Act. 2.12 Parent may require each selling Holder to furnish to Parent information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, and Parent may exclude from such registration the Registrable Securities of any stop order or other order suspending the use of any preliminary or final Prospectus; such Holder who fails to furnish such information within fifteen (15) days after receiving such request. Each Holder covenants and agrees that (i) Promptly incorporate 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 a Prospectus supplement or Section 2.7 and notice from Parent that such Registration Statement and any post-effective amendment such information amendments thereto have become effective as the managing underwriter contemplated by Section 2.3 and the Holder (ii) it and its officers, directors 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 underwriterAffiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to facilitate them in connection with sales of Registrable Securities pursuant to the timely preparation Registration Statement. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from Parent of the occurrence of any event of the kind described in Sections 2.3(ii), (iii), (iv), (v) or 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 2.10, or until it is advised in writing by Parent 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. 2.13 If (i) there is material non-public information regarding Parent which the Board reasonably determines not to be in Parent’s best interest to disclose and delivery which Parent is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of certificates representing assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to Parent which the Board reasonably determines not to be in Parent’s best interest to disclose, then Parent may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed thirty (30) consecutive days, provided that Parent may not postpone or suspend its obligation under this Section 2.13 for more than sixty (60) days in the aggregate during any 12 month period; provided, however, that no such postponement or suspension shall be permitted for consecutive thirty (30) day periods, arising out of the same set of facts, circumstances or transactions. 2.14 If a Registration Statement is not effective with respect to all of the Registrable Securities and Parent 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 Parent will use its commercially reasonable efforts to include in such registration all or any part of the Registrable Securities requested by Holder on behalf of Designated Holder to be included therein (excluding any Registrable Securities previously included in a Registration Statement). Notwithstanding the foregoing, with respect to shelf registration statements, this requirement shall only apply to the initial filing of a new registration statement and shall not be triggered by offerings for Parent’s own account via any shelf takedown transactions, including, for the avoidance of doubt, any confidentially marketed transaction, public offering, registered direct offering, and underwritten registered direct offering. This requirement also does not apply to registrations on Form S-4 or S-8 or their equivalents (relating to equity securities to be sold 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 are in a form eligible for deposit with The Depository Trust Company and that would otherwise not permit the registration of re-sales of previously issued securities, or to the extent the Conversion Shares do not bear constitute Registrable Securities. In any restrictive legendsevent where Parent is required to try to include the Registrable Securities, and enable such securities to if the managing underwriter(s) of a public offering impose a limitation on the number of shares of Common Stock that may be included in the Registration Statement because, in such denominations and registered in underwriter(s)’ judgment, 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 such securities registered hereunder to limitation would be listed on each securities exchange on which the same 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 an orderly public distribution, then Parent shall include in such securities, provided that registration (i) such underwriting agreement contains reasonable first, the securities Parent proposes to sell, 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 underwritingsecond, the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoRegistrable Securities.

Appears in 1 contract

Samples: Convertible Secured Contingent Value Right Agreement (Molecular Templates, Inc.)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of a Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, or Prospectus, furnish via email to those Investors who have supplied the Holder or group of Holders Company with email addresses copies of all such documents prepared proposed to be filed, which documents shall (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review of, of such Investors. The Company shall reflect in each such document when so filed with the Holder or group SEC such comments regarding the Investors and the plan of Holders distribution as the Investors may reasonably and their respective counsel;promptly propose no later than two Trading Days after the Investors have been so furnished with copies of such documents 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 TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any SEC such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)prospectus supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible (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 a the Registration Statement or any amendment thereto, ; and (viv) 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 Investors thereof as set forth in the TZE Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish to Notify the Holder or group Investors as promptly as reasonably possible, and (if requested by the Investors) confirm such notice in writing no later than two Trading Days thereafter, of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group any of Holders the following events: (i) the SEC notifies the Company whether there will be a “review” of any Registration Statement; (ii) the SEC comments in writing on any Registration Statement; (iii) any Registration Statement or any 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 declared effective, to ; (iv) the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the securities SEC or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder any other Federal 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or state governmental authority requests any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of to any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of SEC issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of become ineligible for inclusion therein or any event as a result of which the Registration Statement or Prospectus included in such registration statement, as then in effect, includes an or other document contains any untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of 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, as soon as possible. (e) If requested by an Investor, provide such Investor without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and following all exhibits to the extent requested by such notification Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC. (f) Promptly deliver to each Investor, 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. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Investors in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto 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 furnish 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, use its commercially reasonably efforts to 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 to register or qualify or cooperate with the selling 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 Investor requests in writing, to keep each such registration or qualification (or exemption therefrom) effective for so long as required, but not to exceed the duration of 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 obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. (i) Cooperate with the Investors to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the Holder or group extent permitted by this Agreement and under law, of Holders a reasonable number all restrictive legends, and to enable such certificates to be in such denominations and registered in such names as any such Investors may reasonably request. (j) Upon the occurrence of copies of any event described in Section 6.2(c)(vii), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 Cooperate with any reasonable due diligence investigation undertaken by the Investors in connection with the sale of Registrable Securities, including, without limitation, by making available documents and registrar for all Securities registered pursuant information; provided that the Company will not deliver or make available to the TZE Registration Statement any Investor material, nonpublic information unless such Investor requests in advance in writing to receive material, nonpublic information and a CUSIP number for all agrees to keep such securities, in each case not later than the effective date of such registration;information confidential. (l) Cause Comply with all such securities registered hereunder rules and regulations of the SEC applicable to be listed on each securities exchange on which the same securities issued by registration of the Company are then listed;Common Shares. (m) In connection 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 underwritten offering meeting particular Investor or to make any Event Payments set forth in Section 6.1(e) to such Investor that such Investor furnish to the requirements Company the information specified in Exhibits X-0, X-0 and A-3 hereto and such other information regarding itself, the Registrable Securities and other shares of Section 2.1(e), enter into an underwriting agreement in form 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 C hereto) as shall be reasonably necessary required to effect the offer and sale registration of such securities, provided that (i) Registrable Securities and shall complete and execute such underwriting agreement contains reasonable and customary provisions, (ii) if participating documents in connection with such underwriting, a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwriting, registration as the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering;Company may reasonably request. (n) In connection The Company shall comply with any underwritten offering meeting all applicable rules and regulations of the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders SEC under the Securities Act and the underwriter an opinion from counsel for Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the SEC pursuant to Rule 424 under the Securities Act, promptly inform the Investors in writing if, at any time during the Effectiveness Period, the Company dated does not satisfy the date of the closing pursuant to the underwriting agreement, conditions specified in customary form, scope and substance, which opinion shall be reasonably satisfactory to such Holder or group of Holders and to the underwriterRule 172 and, as a result thereof, the case may be, and their respective counsel; (o) In connection with any underwritten offering meeting the requirements of Section 2.1(e) pursuant Investors are required to the TZE Registration Statement, obtain for delivery to the Company and the managing underwriter, with copies to any Holder or group of Holders, make available 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 Prospectus in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, disposition of Registrable Securities and take such other actions as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by necessary to facilitate the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoregistration of the Registrable Securities hereunder.

Appears in 1 contract

Samples: Securities Purchase Agreement (Via Pharmaceuticals, Inc.)

Registration Procedures. In the case of each registration effected by the Company pursuant to this Article IIconnection with any Registration Statement, the Company will use its reasonable best efforts to shall effect such registration registrations to permit the offering and sale of securities the Registrable Securities in accordance with the intended method or methods of distribution thereof disposition thereof, and pursuant thereto the Company shall 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 topossible: (a) Prepare and file with the required TZE SEC as soon as practicable each such Registration StatementStatement and cause such Registration Statement to become effective and remain effective as provided herein; provided, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewithhowever, and that before filing any such registration statement, Registration Statement or any Prospectus or any amendments or supplements theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference, or Prospectusincluding such documents filed under the Securities Exchange Act of 1934, furnish as amended (the "Exchange Act") that would be incorporated therein by reference), the Company shall afford promptly to the Holder Holders of the Registrable Securities covered by such Registration Statement their counsel and the managing underwriter or group of Holders underwriters, if any, an opportunity to review copies of all such documents prepared proposed to be filed, which documents shall be subject filed a reasonable time prior to the review ofproposed filing thereof and the Company shall give reasonable consideration in good faith to any comments of such Holders, counsel and underwriters; provided that the Holder Company may discontinue any registration of its securities giving rise to registration rights pursuant to Section 2.2 hereof at any time prior to the effective date of the registration statement relating thereto. The Company shall not file any Registration Statement or group Prospectus or any amendments or supplements thereto if the Holders of Holders and a majority of the Registrable Securities covered by such Registration Statement, their respective counsel;, or the managing underwriter or underwriters, if any, shall reasonably object in writing. (ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the TZE Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with time periods prescribed hereby; cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, to be filed pursuant to Rule 424, 424 (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, similar provisions then in force) under the Securities Act; and (v) 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 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. (c) 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 Holders or any 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement as so amended or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, prospectus as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretosupplemented.

Appears in 1 contract

Samples: Registration Rights Agreement (Pca International Inc)

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Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than two Trading Days prior to the Securities Act 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 copies of all such documents proposed to be filed therewithwhich documents will be subject to the review of such Holders and the Special Counsel, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of the Special Counsel 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, thereto to which the Holders of a majority of the Registrable Securities or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents Special Counsel shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object in good faith. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within ten days, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold and the Holder or group Special Counsel as promptly as reasonably possible (and, in the case of Holders (i)(A) below, not less than three Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all Registration Rights Agreement written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its best efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder, 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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. 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. (g) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the 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 the Registration Statement; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. Registration Rights Agreement (h) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each selling Holder 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitateCommission, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretothe controlling person thereof.

Appears in 1 contract

Samples: Registration Rights Agreement (Zix Corp)

Registration Procedures. In connection with the case of each registration effected by the Company pursuant Company's obligation to this Article IIfile a Registration Statement as provided in Section 3 hereof, the Company will 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 topossible: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, a Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectus, furnish to Purchaser and the Holder or group holders of Holders copies the Registrable Securities covered by such Registration Statement a copy of all such documents prepared proposed to be filed, which documents shall will be subject to the review ofof Purchaser and such holders and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority in aggregate principal amount of the Registrable Securities covered by such Registration Statement shall reasonably object (provided that the Company may assume, for the Holder or group purposes of Holders and their respective counselthe foregoing that any holder of Registrable Securities has no objection if the Company has not received notice from such holder within five business days after delivery of such documents to such holder); (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 Registrable Securities for the Effectiveness Period, (iib) prepare and file with the Commission as promptly as practicable any additional registration statements SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be necessary in order required by the rules, regulations or instructions applicable to register for resale under the registration form utilized by the Company or by the Securities Act all of or rules and regulations thereunder for shelf registration or otherwise necessary to keep the Registrable Securities, (iii) Registration Statement effective for the applicable period and cause any related the Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from 424 under the Commission with respect to a Registration Statement or any amendment thereto, Securities Act; and (v) 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 TZE such Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders sellers thereof as set forth in such Registration Statement or supplement to the TZE Registration Statement.Prospectus; (c) Furnish notify Purchaser and the holders of Registrable Securities promptly, and confirm such advice in writing: (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Holder Registration Statement or group any post-effective amendment, when the same has become effective, (2) of Holders and each underwriterthe issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, if anyand (3) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment; (e) furnish, without charge, as many to Purchaser and each selling holder of Registrable Securities, at least one conformed copies as such Holder or group of Holders or any underwriter may reasonably request copy 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); (df) Furnish, deliver to Purchaser and each selling holder of Registrable Securities without charge, such number as many copies of Prospectuses, the Prospectus (including any each preliminary Prospectuses, prospectus) and other documents incident thereto, including any amendment of or supplement thereto as such Persons may reasonably request; the Company consents to the Prospectus, as use of the Holder Prospectus or group any amendment or supplement thereto by each of Holders may from time to time reasonably requestPurchaser and 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; (eg) On or at least 14 days prior to filing of the date Registration Statement, use its best efforts to furnish by certified mail to the beneficial holders of the Registrable Securities, at the addresses of record specified on which the TZE transfer books held by the Trustee, notice of the Company's intention to file a Registration Statement is declared effective, and request that all holders of Registrable Securities desiring to the extent required by applicable law, register and qualify the securities covered by such registration statement sell their Registrable Securities pursuant to the securities or blue sky laws Registration Statement notify the Company promptly in writing; (h) cooperate with Purchaser and the selling holders of each jurisdiction as shall Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be reasonably requested sold and not bearing any restrictive legends; (i) use its best efforts to cause the Registrable Securities covered by the Holder Registration Statement to be registered with or group approved by such governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of Holders; providedsuch Registrable Securities in such jurisdictions as the sellers may specify in response to inquiries to be made by the Company, however, provided 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 file a take any action which would subject it to general consent to service of process in any such states or jurisdictions jurisdiction where it is not then so subject; (fj) Notify the Holder or group of Holders and the managing underwriteras provided in Section 3, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event shall occur as a result of which it is necessary, in the opinion of counsel for the Company or for the holders of a majority of the Registrable Securities, to amend or supplement the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary order to make the statements therein Prospectus not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleading, and following such notification promptly prepare and furnish a supplement or post-effective amendment to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement to, the related Prospectus or an amendment of, such Prospectus as may be necessary any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such securitiesthe Registrable Securities, such the Prospectus shall 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 light of the circumstances under which they were 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 obtain a CUSIP number for all such securitiesRegistrable Securities (unless already obtained), in each case not later than the effective date of such registrationEffective Date; (l) Cause make available for inspection during normal business hours by a representative of the holders of a majority of Registrable Securities and any attorney or accountant retained by such representative, 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 Purchaser or any such attorney or accountant in connection with the Registration Statement; provided that all such securities registered hereunder records, information or documents shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order or is generally available to be listed on each securities exchange on which the same securities issued by the Company are then listedpublic other than as a result of disclosure in violation of this paragraph (l); (m) In connection otherwise use its best efforts to comply with any underwritten offering meeting all applicable rules and regulations of 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 indemnification and contribution obligations of such Holder shall be several and not jointSEC, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 make generally available to its their security holders, as soon as reasonably practicable, holders an earnings earning statement satisfying the provisions of Section 11(a) of the Securities ActAct (in accordance with Rule 158 thereunder or otherwise), no later than 45 days after the end of the 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company's first fiscal quarter commencing after the Effective Date, which statements shall cover said 12-month period; (rn) In cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended from time to time (the "TIA"), and, in connection therewith, cooperate with any underwritten offering meeting the requirements Trustee under the Indenture and the holders of Section 2.1(e) make available upon reasonable notice at reasonable times the Debentures 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 for reasonable periods for inspection by a representative appointed by any Holderexecute, by and use their best efforts to cause the managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriterTrustee to execute, all pertinent financial documents as may be required to effect such changes, and all other records, corporate forms and documents and properties required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; and (o) if at any time an event of the Companykind described in Section 4(j) shall occur, promptly notify Purchaser and cause all the holders of Registrable Securities that the use of the Company’s officersProspectus must be discontinued. Each selling holder of Registrable Securities as to which any registration is being effected agrees, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality condition to the Company registration obligations with respect to such information and of which holder provided herein, to furnish to the Holder is aware; or (iv) Company such information is independently developed regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Person; and (s) In connection with Registrable Securities that, upon receipt of any underwritten offering meeting notice from the requirements of Section 2.1(eCompany described in paragraph 4(o), cause the senior executive officers such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(j) hereof, or until it is advised in writing by the Company to participate (which notice the Company shall give as promptly as possible), that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the customary “road show” presentations that may be reasonably requested Prospectus, and, if so directed by the managing underwriter Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in any such underwritten offering and otherwise to facilitateholder's possession, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoof the Prospectus covering such Registrable Securities current at the time of receipt of such notice.

Appears in 1 contract

Samples: Registration Rights Agreement (Sterling House Corp)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel 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, or Prospectus, furnish thereto to which the Holder or group Holders of Holders copies a majority of all documents prepared to be filed, which documents the Registrable Securities shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object in good faith. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statement in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within 10 Trading Days, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and, as promptly as 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold as promptly as reasonably possible (and, in the Holder or group case of Holders (i)(A) below, not less than two Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of the Registration Statement and qualify whenever the securities covered by such registration statement pursuant to Commission comments in writing on the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request 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; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder, without charge, at least one conformed copy of 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (h) 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 pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each selling Holder 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter Commission, the person thereof that has voting and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of dispositive control over the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoShares.

Appears in 1 contract

Samples: Registration Rights Agreement (Vicom Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: (i) Not less than five Trading Days prior to the initiation filing of each registration and as Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: shall, (ai) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 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 shall reasonably and in good faith object, provided, the Holder or group Company is notified of such objection in writing no later than 3 Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within 10 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (ciii) Furnish 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 Holder or group applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 130% of the number of such Registrable Securities. (iv) Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (ii) through (vi) of this Section 5.13(c)(iv), shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 or the Registration Statement or Prospectus; provided that any 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 Holders make no acknowledgement that any such information is material, non-public information. (v) Promptly deliver to each Holder, 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. 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. (vi) Use commercially reasonable efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (vii) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (viii) Upon the occurrence of any event contemplated by this Section 5.13(c), as promptly prepare and furnish as reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Holder or group Company and its stockholders of Holders a reasonable number the premature disclosure of copies of such event, prepare a supplement toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading;. If the Company notifies the Holders in accordance with clauses (ii) through (vi) of Section 5.13(c)(iv) 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 5.13(c)(iv), 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 5.13(c)(iv), 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 interest of the Company. Notwithstanding the Company's right to suspend the use of the prospectus hereunder, the Company shall remain liable to the Holders pursuant to Section 5.13(b) for any suspensions of the Registration Statement hereunder which otherwise require payment thereunder. (hix) Prevent or Comply with all applicable rules and regulations of the Commission. (x) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any preliminary or final Prospectus;of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment. (ixi) 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 The Company may require, at any time prior to the plan third Trading Day prior to the Filing Date, each Holder to furnish to the Company a statement as to the number of distribution shares of Common Stock beneficially owned by such Holder and, if requested by the Commission, the controlling person thereof, within three Trading days of the Company's request. During any periods that the Company is unable to meet its obligations hereunder 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 the registration 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 Registrable 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to solely because any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant fails to the underwriting agreement, in customary form, scope and substance, which opinion shall be reasonably satisfactory to furnish 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties information within three Trading Days of the Company's request, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any liquidated damages that are accruing at such Person in connection with such disposition as time shall be necessary to enable them to exercise their due diligence responsibilitytolled and any Event that may otherwise occur solely because of such delay shall be suspended, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Securities Purchase Agreement (Galaxy Energy Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of each Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statementthe Company shall, or any amendments or supplements thereto, or Prospectus, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Holder or group Company is notified of such objection in writing no later than 5 Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish (i) Subject to clause (ii) below, 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 Holder or group applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 110% of the number of such Registrable Securities. (ii) In addition, in the event that all Registrable Securities are not included on the initial Registration Statement as contemplated by the last three sentences of the definition of Registrable Securities above, then upon written request of a majority in interest of the Holders, 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 110% of the number of such Registrable Securities, but in no event shall such additional Registration Statement be filed less than 30 days after the Effective Date of the initial Registration Statement filed hereunder. (d) Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a condition thereto to qualify to do business Selling Stockholder or to file a general consent to service the Plan of process in any such states or jurisdictions where it is Distribution, but not then so subject; (f) Notify information which the Holder or group of Holders Company believes would constitute material and the managing underwriter, if any, non-public information); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 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 Holders make no acknowledgement that any such information is material, non-public information. (e) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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. (f) Furnish to each Holder, 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (g) Promptly deliver to each Holder, 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 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(d). (h) If NASDR Rule 2710 requires any broker-dealer to make a filing prior to executing a sale by a Holder, the Company shall (i) make an Issuer Filing with the NASDR, Inc. Corporate Financing Department pursuant to proposed NASDR Rule 2710(b)(10)(A)(i), (ii) respond within five Trading Days to any comments received from NASDR in connection therewith, (iii) and pay the filing fee required in connection therewith. (i) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (j) 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 pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (k) Upon the occurrence of any event contemplated by this Section 3, as promptly as reasonably 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 toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hii) Prevent or obtain the withdrawal through (vi) of any stop order or other order suspending Section 3(d) above to suspend the use of any preliminary or final Prospectus; (i) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as until the managing underwriter and the Holder or group of Holders agree should be included therein relating to the plan of distribution with respect requisite changes to such securitiesProspectus have been made, and make all required filings then the Holders shall suspend use of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified Prospectus. The Company will use its best efforts to ensure that the use of the matters Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to be incorporated in such Prospectus supplement or post-effective amendment; (jexercise its right under this Section 3(k) Cooperate with to suspend the Holder or group availability 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 Prospectus, subject to the payment of partial liquidated damages pursuant to Section 2(b), for a CUSIP number for all such securities, period not to exceed 60 days (which need not be consecutive days) in each case not later than the effective date of such registration;any 12 month period. (l) Cause Comply with all such securities registered hereunder to be listed on each securities exchange on which applicable rules and regulations of the same securities issued by the Company are then listed;Commission. (m) In connection with any underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement in form reasonably necessary The Company may require each selling Holder 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the person thereof that has voting and dispositive control over the managing underwriter, Shares. During any periods that the Company is unable to meet its obligations hereunder with copies respect to the registration of the Registrable Securities solely because any Holder or group of Holders, a “cold comfort” letter from the Company’s independent certified public accountants in customary form and covering fails to furnish 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all information within three Trading Days of the Company’s officersrequest, directors and employees and the independent public accountants who have certified the Company’s financial statements any liquidated damages that are accruing at such time as to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as Holder only shall be necessary tolled and any Event that may otherwise occur solely because of such delay shall be suspended as to enable them to exercise their due diligence responsibilitysuch Holder only, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Crdentia Corp)

Registration Procedures. In connection with the case registration of each registration any of its securities under the Securities Act effected by the Company pursuant to the requirements of this Article IIAgreement, the Company will 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 will, as expeditiously as reasonably practicable possible and will keep the Holders advised on a reasonably current basis as subject to the initiation other terms and conditions of each registration and as to the completion thereof. At its expense, the Company will use its reasonable best efforts tothis Agreement: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant notify each Holder of Registrable Securities as to the Securities Act to be filed therewithfiling of a Registration Statement covering securities of that Holder, and before filing such registration statement, or any of all amendments or supplements thereto, or Prospectus, furnish thereto filed prior to the Holder or group effective date of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counselsuch Registration Statement; (ib) Prepare notify each Holder of Registrable Securities covered by a Registration Statement promptly after it shall receive notice thereof, of the time when said Registration Statement becomes effective or when any amendment or supplement to any prospectus forming a part of said Registration Statement has been filed; (c) notify each Holder of Registrable Securities covered by a Registration Statement promptly of any request by the Commission for the amending or supplementing of such Registration Statement or prospectus or for additional information; (d) prepare and promptly file with the Commission amendments and supplements to such amendments, including post-effective amendments, to the TZE Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as required hereby and to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the sale or other 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. (c) 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 Holders or any 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 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 reasonably requested by the Holder or group of Holders; providedRegistration Statement (including, 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documentswithout limitation, as soon as reasonably practicable after notice thereof is received by the Companymay be necessary to correct any statements or omissions if, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus prospectus relating to the TZE Registration Statement Registrable Securities is required to be delivered pursuant under the Securities Act, any event with respect to the Securities Act of the occurrence of any event Company shall have occurred as a result of which the Prospectus included in any such registration statement, prospectus or any other prospectus as then in effect, includes effect would include an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary in order to make the statements therein made, in light of the circumstances under which they were made, not misleading); and, and following such notification promptly in addition, prepare and file with the Commission, promptly upon the written request of any Holder of Registrable Securities, any amendments or supplements to such Registration Statement or prospectus which may be reasonably necessary or advisable in connection with the distribution of the Registrable Securities; (e) furnish to the Holder or group of Holders a reasonable each Holder, as soon as available, such number of copies of each Registration Statement, in conformity with the requirements of the Securities Act, and such other documents, as such selling Holders may from time to time reasonably request; (f) use its best efforts to register or qualify the securities covered by such Registration Statement under such securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as each holder of such securities shall request (PROVIDED, HOWEVER, that the Company shall not be obligated to qualify as a supplement toforeign corporation to do business under the laws of any jurisdiction in which it is not then qualified or to file any general consent to service or process), or an amendment of, and do such Prospectus other reasonable acts and things as may be necessary so that, as thereafter delivered required of it to enable such holder to consummate the purchasers of disposition in such securities, such Prospectus 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 in light jurisdiction of the circumstances securities covered by such Registration Statement; (g) in the case of the registration of the Registrable Debt Securities, the Company shall use its best efforts to qualify the indenture under which they such securities were made not misleadingissued (the "Indenture") under the Trust Indenture Act; (h) Prevent enter into customary agreements (including an underwriting agreement in customary form in the case of an underwritten offering of Registrable Equity Securities) and take such other actions as are reasonably required by the Holders of Registrable Securities or the underwriters, if any, in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, providing for the benefit of the Holders the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriter(s)); (i) 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 the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty-five (45) days after the end of any 12-month period (or ninety (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 an underwriter or to underwriters in a firm commitment or best efforts Underwritten Offering and (ii) if not sold to an underwriter or 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 relevant Registration Statement, which statements shall cover said 12-month periods; (j) advise each Holder of Registrable Securities promptly after the Company shall receive notice or obtain knowledge of the withdrawal issuance of any stop order by the Commission suspending the effectiveness of any Registration Statement or amendment thereto or of the initiation or threatening of any proceeding for that purpose, and promptly use its best efforts to prevent the issuance of any stop order or other obtain its withdrawal promptly if such stop 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)issued; (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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter deliver an opinion from of counsel for the Company dated the date in customary form and covering such matters of the closing pursuant type customarily covered by opinions of issuer's counsel and such other matters as the Holders of a majority of the Registrable Securities covered by a Registration Statement or the underwriters reasonably request and, in the case of an underwritten offering, deliver to the underwriting agreement, in customary form, scope and 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, underwriters a "cold comfort" letter from the Company’s 's independent certified public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” letters such letters; (l) prior to the effective date of a Registration Statement, (i) provide the registrar for the Registrable Securities with printed certificates for such securities in a form eligible for deposit with DTC and (ii) provide a CUSIP number for such securities; and (m) use its best efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the securities of the same class as the Registrable Securities are then listed. At its expense, the Company shall, in addition to the requirements of Section 2.1 hereof, keep each Registration Statement effective until the earlier of (i) such time when all Registrable Securities covered by such Registration Statement have been sold and (ii) 90 days from the date the Registration Statement first becomes effective or such longer period as may be required by the Securities Act. It shall be a condition precedent to the obligation of Company to take any action pursuant to this Agreement in respect of the securities which are to be registered at the request of any Holder of Registrable Securities that such Holder shall furnish to Company such information regarding the securities held by such Holder and the intended method of disposition thereof as Company shall reasonably request and as shall be required in connection with the action taken by Company. The Company shall be entitled to postpone for a reasonable period of time (but not exceeding 90 days) the filing of any registration statement (other than pursuant to Section 2.1 hereof) otherwise required to be prepared and filed by it pursuant to this Agreement if the Company determines, in its reasonable judgment, that such registration and offering would materially and adversely interfere with any material financing, acquisition, corporate reorganization or other material transaction involving the Company or would require premature disclosure thereof. The Company shall promptly give the Holders of Registrable Securities requesting registration thereof pursuant to Section 2.2 or 2.3 hereof written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. If the Company shall so postpone the filing of a registration statement, such Holders of Registrable Securities requesting registration thereof pursuant to Section 2.2 shall have the right to withdraw the request for registration by giving written notice to the Company within 10 Business Days after receipt of the notice of postponement and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which Holders of Registrable Securities are entitled pursuant to Section 2.2 hereof. In the case of a Shelf Registration Statement, each Holder of Registrable Securities covered thereby, upon receipt of any notice (a "Suspension Notice") from the Company of the happening of any event of the kind requiring an action pursuant to Section 2.5(d) hereof, shall forthwith discontinue disposition of the Registrable Securities pursuant to the Shelf Registration Statement covering such Registrable Securities until such Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.5(d) or until it is advised in writing (the "Advice") by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus, and, if so directed by the Company, such Holder will, or will request 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 underwriterunderwriters, if any, participating to, deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the disposition prospectus covering such Registrable Securities current at the time of receipt of such securities and their respective counsel in connection with any filings required to be made with notice. In the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 event that the Company determines in good faith to be confidentialshall give any Suspension Notice, and of which determination such Person is notified, unless (i) the release of Company shall use its best efforts and take such information is required by law; actions as are reasonably necessary to render the Advice and end the Suspension Period as promptly as practicable and (ii) such information the time periods for which a Shelf Registration Statement is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available required to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality be kept effective pursuant to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may 2.1 hereof shall be reasonably requested extended by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretonumber of days during the Suspension Period.

Appears in 1 contract

Samples: Registration Rights Agreement (Triumph Connecticut LTD Partnership)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare and file with the required TZE Registration Statement, including all exhibits and financial statements required pursuant Commission on or prior to the Securities Act Filing Date, a Registration Statement on Form S-3 (or if such form is not available to be filed therewiththe 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 before 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 such registration statement, of the Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, or Prospectus, the Company shall (i) furnish to the Holder or group of Holders Special Counsel, copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated by reference) will be subject to the review ofof 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 group any such Prospectus or any amendments or supplements thereto to which the Holders of Holders and a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their respective counsel;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 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 PeriodPeriod 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, (ii) shall prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold and the Holder or group of Holders and each underwriter, if any, without charge, Special Counsel as many conformed copies promptly as such Holder or group of Holders possible (A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effectiveproposed 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 extent required by applicable lawRegistration Statement or any post-effective amendment, register and qualify when the securities covered by such registration statement pursuant same has become effective (which notice shall be delivered to the securities or blue sky laws of each jurisdiction Lead Investor and Special Counsel on the same day as shall be 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; (f) Notify the Holder or group of Holders and the managing underwriter, if anyeffectiveness), and (if requested) confirm such advice in writing and provide copies of after the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, effectiveness thereof: (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) 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; ; (g) Promptly notify the Holder or group of Holders (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiiv) at any time when a Prospectus relating to if the TZE financial statements included in the Registration Statement is required to be delivered pursuant to the Securities Act become ineligible for inclusion therein or of the occurrence of any event as a result 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 which the Prospectus included in such registration statementRegistration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in Sections 3(c)(C)(i), 3(c)(C)(ii), 3(c)(C)(iii) or 3(c)(C)(iv) occur, 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 following such notification promptly prepare and furnish 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 or group of Holders a reasonable number of 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 one day 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)(iv), as promptly as possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in the light of the circumstances under which they were made made, not misleading;. (hk) 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 Cause all Registrable Securities 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 Registration Statement to be incorporated in such Prospectus supplement listed on NASDAQ and any other United States securities exchange, quotation system, market or postover-effective amendment; (j) Cooperate with the Holder or group of Holders and the managing underwriterthe-counter bulletin board, 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 such securities registered hereunder to be listed on each securities exchange on which the same similar securities issued by the Company are then listed;. (ml) In connection Comply in all material respects 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 all applicable rules 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date regulations of the closing pursuant to the underwriting agreement, in customary form, scope Commission and 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 make generally available to its security holders, as soon as reasonably practicable, an holders earnings statement statements satisfying the provisions of Section 11(a) of the Securities Act; Act and Rule 158 not later than 45 days after the end of any 3-month period (ror 90 days after the end of any 12-month period if such period is a fiscal year) In connection with any underwritten offering meeting 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 Section 2.1(eRule 158. (m) make available upon reasonable notice at reasonable times Request each selling Holder to furnish to the Company information regarding such Holder and for reasonable periods for inspection the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement by sending to each selling Holder a representative appointed by any HolderSelling Shareholder Questionnaire, by the managing underwriter form of which is attached as Exhibit B, and by any attorney, accountant or other agent retained by 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 such underwriter, all pertinent financial and other records, corporate documents and properties Holder by name or otherwise as the holder of any securities of the Company, and cause all 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 Company’s officersreference 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, directors and employees and upon receipt of a notice from the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business Company of the occurrence of any event of the kind described in Section 3(c)(C)(i), 3(c)(C)(ii), 3(c)(C)(iii), 3(c)(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 and 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 supply all information reasonably requested be incorporated by any reference in such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to Prospectus or Registration Statement. (n) If (i) there is material non-public information regarding the Company pursuant which the Company's Board of Directors (the "Board") reasonably determines not to this Section 2.4(rbe in the Company's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) shall agree 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 hold such information the Company which the Board reasonably determines not to be in strict confidence the Company's best interest to disclose and shall 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 make any disclosure or use any such information to exceed 30 consecutive days, provided that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (imay not postpone or suspend its obligation under this Section 3(n) the release of such information is required by law; (ii) such information is or becomes publicly known other for more than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate 45 days in the customary “road show” presentations that may be reasonably requested by the managing underwriter in aggregate during any such underwritten offering and otherwise to facilitate12 month period (each, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoa "Blackout Period").

Appears in 1 contract

Samples: Investor Rights Agreement (Nexmed Inc)

Registration Procedures. In If and whenever the case Other Investors that are holders of each registration effected by Registrable Securities request that the Company offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to the provisions of this Article IIAgreement, the Company will shall use its commercially reasonable best efforts to effect such the registration to permit of the offer and sale of securities such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution thereof disposition thereof, and pursuant thereto the Company shall as expeditiously soon 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 toapplicable: (a) Prepare subject to Section 2(a), Section 2(b) and Section 2(c), prepare and file with the required TZE Commission a Registration Statement, including all exhibits Statement covering such Registrable Securities and financial statements required pursuant use its commercially reasonable best efforts to the Securities Act cause such Registration Statement to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counseldeclared effective; (ib) Prepare in the case of a Long-Form Registration or a Short-Form Registration, prepare and file with the Commission such amendments, including post-effective amendments, amendments and supplements to the TZE such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the until all of such Registrable Securities for the Effectiveness Period, (ii) prepare have been disposed of and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all such 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 such Registration Statement.; (c) Furnish within a reasonable time before filing such Registration Statement, Prospectus or amendments or supplements thereto with the Commission, furnish to one counsel selected by Other Investors that are holders of a majority of such Registrable Securities copies of such documents proposed to be filed, which documents shall be subject to the Holder or group review, comment and approval of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or any 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)counsel; (d) Furnishnotify each Other Investor that is a selling holder of Registrable Securities, without chargepromptly after the Company receives notice thereof, of the time when such number of ProspectusesRegistration Statement has been declared effective or a supplement, including a Shelf Supplement, to any preliminary Prospectuses, and other documents incident thereto, including any amendment Prospectus forming a part of or supplement to such Registration Statement has been filed with the Prospectus, as the Holder or group of Holders may from time to time reasonably requestCommission; (e) On or prior furnish to each Other Investor that is a selling holder of Registrable Securities such number of copies of the date on which the TZE Prospectus included in such Registration Statement is declared effective(including each preliminary Prospectus) and any supplement thereto, including a Shelf Supplement (in each case including all exhibits and documents incorporated by reference therein), and such other documents as such seller may request in order to facilitate the extent required by applicable law, register and qualify disposition of the securities covered Registrable Securities owned by such registration statement pursuant seller; (f) use its commercially reasonable best efforts to the register or qualify such Registrable Securities under such other securities or blue sky sky” laws of each jurisdiction such jurisdictions as shall any selling holder requests and do any and all other acts and things which may be reasonably requested necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Holder or group of Holderssuch holders; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify generally to do business business, subject itself to general taxation or to file a general consent to general service of process in any such states or jurisdictions jurisdiction where it is would not then otherwise be required to do so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority but for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional informationthis Section 5(f); (g) Promptly notify the Holder or group each Other Investor that is a selling holder of Holders (i) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiationsuch Registrable Securities, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement thereto is required to be delivered pursuant to under the Securities Act Act, of the occurrence happening of any event as a result of which that would cause the Prospectus included in such registration statement, as then in effect, includes Registration Statement to contain an untrue statement of a material fact or omits to state a material omit any fact required to be stated therein or necessary in order to make the statements therein made therein, in light of the circumstances under which they were made, not misleading, and following and, at the request of any such notification promptly holder, the Company shall prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, to such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securitiesRegistrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made made, not misleading; (h) Prevent or obtain make available for inspection (pursuant to a customary confidentiality agreement, as applicable, if reasonably requested by the withdrawal Company) by any Other Investor that is a selling holder of Registrable Securities, any stop order underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other order suspending agent retained by any such holder or underwriter (collectively, the use “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), and cause the Company’s officers and directors to supply all information requested by any preliminary or final Prospectussuch Inspector in connection with such Registration Statement; (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 provide a transfer agent and registrar for all Securities registered pursuant to (which may be the TZE Registration Statement and a CUSIP number same entity) for all such securities, in each case Registrable Securities not later than the effective date of such registration; (lj) Cause all use its commercially reasonable best efforts to cause such securities registered hereunder Registrable Securities to be listed on each securities exchange on which the same Common Stock is then listed or, if the Common Stock is not then listed, on a national securities issued exchange selected by the Company Other Investors that are then listedholders of a majority of such Registrable Securities; (mk) In in connection with any an underwritten offering meeting the requirements of Section 2.1(e)offering, enter into an such customary agreements (including 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, lock-up agreements in customary form, scope ) and substance, which opinion shall be reasonably satisfactory to take all such Holder or group of Holders and to the underwriter, other customary actions as the case may be, and their respective counsel; (o) In connection with any underwritten offering meeting the requirements Other Investors that are holders 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 such Registrable Securities 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 such offering request in order to the closing pursuant to the underwriting agreement; (p) Cooperate with any Holder expedite or group of Holders and each underwriter, if any, participating in facilitate the disposition of such securities Registrable Securities (including, without limitation, making appropriate officers of the Company available to participate in “road show” and their respective counsel in connection other customary marketing activities (including one-on-one meetings with any filings required to be made with prospective purchasers of the Financial Industry Regulatory Authority, Inc.Registrable Securities)); (ql) Make otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, as soon as reasonably practicable, stockholders an earnings statement satisfying (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than 60 days after the end of the 12-month period beginning with the first day of the Company’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto; (m) furnish to each Other Investor that is a selling holder of Registrable Securities and each underwriter, if any, with (i) a written legal opinion of the Company’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of the Company’s counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment to the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by the Company’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings; (n) without limiting Section 5(f), use its commercially reasonable best efforts to cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the Other Investors that are holders of such Registrable Securities to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof; (o) notify the Other Investors that are holders of Registrable Securities promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information; (p) advise the Other Investors that are holders of Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; (q) permit any Other Investor that is a holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a “controlling person” (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) (a “Controlling Person”) of the Company, to participate in the preparation of such Registration Statement and to require the insertion therein of language, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included; (r) In connection cooperate with the holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement or Rule 144 free of any underwritten offering meeting restrictive legends and representing such number of shares of Common Stock and registered in such names as the requirements holders of Section 2.1(ethe Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement or Rule 144; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System (the “DTCDRS”); (s) make available upon reasonable notice at reasonable times not later than the effective date of such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for reasonable periods the Registrable Securities which are in a form eligible for inspection deposit with The Depository Trust Company; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the DTCDRS; (t) take no direct or indirect action prohibited by a representative appointed by Regulation M under the Exchange Act; provided, that, to the extent that any Holder, by the managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of prohibition is applicable to the Company, and cause the Company will take all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements reasonable action to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the Holder is aware; or (iv) such information is independently developed by such Personprohibition inapplicable; and (su) In connection with any underwritten offering meeting otherwise use its commercially reasonable best efforts to take all other steps necessary to effect the requirements registration of Section 2.1(e), cause the senior executive officers of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering Registrable Securities contemplated herein and customary selling efforts related theretohereby.

Appears in 1 contract

Samples: Registration Rights Agreement (ELAH Holdings, Inc.)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Business Days prior to the Securities Act filing of each Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statementthe Company shall, or any amendments or supplements thereto, or Prospectus, (i) furnish to the Holder or group of Holders and their Special Counsel copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of, the Holder or group of such Holders and their Special Counsel, 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 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 and their Special Counsel shall reasonably object, PROVIDED, the Company is notified of such objection no later than 3 (three) Business Days after the Holders have been so furnished copies of such documents. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within ten Business Days, to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 all their existing Registration Statements hereunder. (d) Notify the Holders of Registrable Securities to be sold and their Special Counsel as promptly as reasonably possible (and, in the Holder or group case of Holders (i)(A) below, not less than five Business Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Business Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 Pro spectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiivi) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (e) Promptly deliver to each Holder and 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. 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. (f) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and 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, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or subject the Company to any material tax in any such jurisdiction where it is not then so subject. (g) Upon the occurrence of any event contemplated by Section 3(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 following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules 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 regulations 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoCommission.

Appears in 1 contract

Samples: Registration Rights Agreement (Universal Broadband Networks Inc)

Registration Procedures. In The following provisions shall apply to the case of each registration effected by the Company Shelf Registration Statement filed pursuant to this Article II, the Company will 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 toSection 2: (a) Prepare The Company shall: (i) notify the required TZE Holders of Registrable Securities at least 10 (ten) Business Days before filing any Shelf Registration Statement pursuant to Section 2 of the Company’s intent to file such Shelf Registration Statement and seeking a determination from such Holder as to whether such Holder elects to have its Registrable Securities included in such Shelf Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and ; (ii) before filing such registration statement, any Shelf Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectusthereto with the Commission, furnish to the Holder or group of Holders each Initial Purchaser copies of all such documents prepared proposed to be filed, which documents shall be subject filed and use its commercially reasonable efforts to the review of, the Holder or group of Holders and their respective counsel; (i) Prepare and file reflect in each such document when so filed with the Commission such amendments, including post-effective amendments, comments as such Initial Purchasers reasonably shall propose within three (3) Business Days of the delivery of such copies 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 Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any 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 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 reasonably requested by the Holder or group of HoldersInitial Purchasers; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or permitted to file a general consent prospectus supplements or post-effective amendments to service reflect additional selling securityholders without prior review of process in any such states or jurisdictions where it is not then so subjectthe Initial Purchasers; (fiii) Notify use its commercially reasonable efforts to prepare and file with the Holder or group Commission such amendments and post-effective amendments to the Shelf Registration Statement and file with the Commission any other required document as may be necessary to keep such Shelf Registration Statement continuously effective until the expiration of Holders and the managing underwriter, if anyEffective Period; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (if requestedor any similar provisions then in force) confirm such advice in writing under the Securities Act; and provide copies comply with the provisions of the relevant documents, Securities Act applicable to it with respect to the disposition of all Securities covered by such Shelf Registration Statement during the Effective Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Shelf Registration Statement as soon so amended or such Prospectus as so supplemented; (iv) as promptly as reasonably practicable after notice thereof is received by practicable, notify the Company, Notice Holders (iA) when such Shelf Registration Statement or the TZE Registration Statement, Prospectus included therein or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 has been filed with the managing underwriter and the Holder or group of Holders agree should be included therein relating to the plan of distribution Commission, and, with respect to such securitiesShelf Registration Statement or any post-effective amendment that is not an Automatic Shelf Registration Statement, and make all required filings when the same is declared or has become effective, provided, that the availability of such Shelf Registration Statement or any Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of on 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder Commission’s XXXXX database shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel considered notice for the Company dated the date purpose of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.this

Appears in 1 contract

Samples: Registration Rights Agreement (Insulet Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five (5) Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of each Registration Statement or any amendments related Prospectus or supplements theretoany amendment or supplement thereto (excluding any document that would be incorporated or deemed incorporated therein by reference), or Prospectus, the Company shall (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the Holder reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or group any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably and in good faith object, provided that the Company is notified of such objection in writing no later than five (5) Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (ii) through (vi) hereof shall be accompanied by an instruction to suspend the Holder or group use of Holders the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) the occurrence or existence of any Corporate Development. (d) Promptly deliver to each Holder, without charge, an electronic copy of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto. Filing on the Commission's XXXXX system shall be deemed to satisfy such delivery requirement. 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. (e) Use Reasonable Best Efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (f) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Warrant, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (g) Upon the occurrence of any event contemplated in Section 3(c), as promptly as reasonably possible, prepare and furnish a supplement or amendment including a post-effective amendment; to a Registration Statement or a supplement to the Holder related Prospectus or group of Holders a reasonable number of copies of a supplement toany document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading;. If the Company notifies the Holders in accordance with clauses (ii) through (vi) of Section 3(c) above to suspend 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(c), 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. In the case of suspension of the availability of a Registration Statement and Prospectus pursuant to clause (vi) of Section 3(c), 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; provided, however, that the Company shall not be entitled to suspend the use of a Prospectus included in an effective Registration Statement pursuant to clause (vi) of Section 3(c) for an aggregate period in excess of ninety (90) days in any 12-month period. (h) Prevent or Comply with all applicable rules and regulations of the Commission. (i) Use its Reasonable Best Efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) 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 Registrable Securities for sale in such Prospectus supplement or post-effective amendment;any jurisdiction, at the earliest practicable moment. (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 such securities registered hereunder to be listed on each securities exchange on which the same securities issued by the Company are then listed; (m) In connection with any underwritten offering meeting the requirements filing 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 underwritingRegistration Statement or a supplement or amendment thereto, the indemnification and contribution obligations of such Company may require each Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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, requested by the managing underwriter and by any attorneyCommission, accountant or other agent retained by any such Holder or any such underwriterthe controlling Person thereof, all pertinent financial and other records, corporate documents and properties of the Company, and cause all within three Trading Days of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretorequest.

Appears in 1 contract

Samples: Registration Rights Agreement (Bottomline Technologies Inc /De/)

Registration Procedures. In connection with the case filing of each registration effected by the Company any Registration Statement pursuant to this Article IISection 2 hereof, the Company will use its reasonable best efforts to shall effect such registration to permit the sale resale of the securities covered thereby in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable disposition thereof, and will keep the Holders advised on a reasonably current basis as to the initiation of each registration pursuant thereto and as to the completion thereof. At its expense, in connection with any Registration Statement filed by the Company will use its reasonable best efforts tohereunder the Company shall: (a) Prepare and file with the required TZE Registration StatementSEC, including all exhibits and financial statements required pursuant on or prior to the Securities Act to be filed therewithFiling Date, a Registration Statement or Registration Statements as prescribed by Section 2 hereof, and before filing use all reasonable efforts to cause each such registration statement, or any amendments or supplements thereto, or Prospectus, furnish Registration Statement to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders become effective and their respective counsel;remain effective as provided herein. (ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendmentsamendments to each Shelf Registration, to the TZE Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with ; cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any prospectus supplement required Prospectus supplement (subject to the terms of this Agreement)by applicable law, and, and as so supplemented or amended, to be filed pursuant to Rule 424, 424 (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, similar provisions then in force) promulgated under the Securities Act; and (v) 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 TZE such Registration Statement as so amended or in such Prospectus as so supplemented. The Company shall be deemed not to have used all reasonable efforts to keep a Registration Statement effective during the Effectiveness Period if it voluntarily takes any action that would result in Selling Holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required by applicable period in accordance (subject to law or unless the terms of Company complies with this Agreement, including without limitation the provisions of Section 4(i) with the intended methods of disposition by the Holders thereof as set forth in the TZE Registration Statementhereof. (c) Furnish to Notify the Holder or group of Selling Holders and each underwriterDesignated Counsel, if any, without chargepromptly (but in any event within two Business Days), as many conformed copies as such Holder or group of Holders (i) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment prospectus supplement or post-effective amendment theretohas been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, at the sole expense of the Company, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, all documents incorporated therein or deemed to be incorporated by reference and all exhibits (including those incorporated by referenceexhibits); (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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE a Registration Statement or of any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, initiation of any proceedings for such purposes; that purpose, (iiiii) of the receipt by the Company happening of any notification with event, the existence of any condition or any information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in or amendments or supplements to such Registration Statement, Prospectus or documents so that, in the suspension case of the qualification of the securities so registered for offering or sale in Registration Statement, it will not contain any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a 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, 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 misleadingmisleading and (iv) of the Company’s determination that a post-effective amendment to a Registration Statement would be appropriate. (d) Use all reasonable efforts to prevent the issuance of 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 all reasonable efforts to obtain the withdrawal of any such order at the earliest possible moment, and following provide, as promptly as practicable, notice to the Selling Holders of the withdrawal of any such notification order. (e) Furnish to each Selling Holder and Designated Counsel, if any, at the sole expense of the Company, one conformed copy of 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. (f) Deliver to each Selling Holder and Designated Counsel, if any, at the sole expense of the Company, as many copies of the Prospectus and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to Section 4A(a) and (c) hereof, 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 dealers, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (g) Cause the Company’s counsel to perform Blue Sky law investigations and file registrations and qualifications required to be filed in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities or offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Selling Holder reasonably requests, keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable under Blue Sky laws to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable 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, (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (iii) subject itself to taxation in any such jurisdiction where it is not then so subject. (h) Cooperate with the Selling Holders and their respective counsel to facilitate the timely preparation and delivery of certificates representing shares of Registrable Securities to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company; and enable such shares of Registrable Securities to be in such denominations and registered in such names as the Selling Holders may reasonably request. (i) Upon the occurrence of any event contemplated by Section 4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable prepare and furnish (subject to Section 4(a) hereof) file with the SEC, at the sole expense of the Company, a supplement or post-effective amendment to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary file any other required document so that, as thereafter delivered to the purchasers of such securitiesthe Registrable Securities being sold thereunder, any such Prospectus shall 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 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 Prior to the effective date of the first Registration Statement relating to the Registrable Securities, (i) provide the Trustee with certificates for 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 Registrable Securities 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 (ii) provide a CUSIP number for 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);Registrable Securities. (k) Provide During the Effectiveness Period, make available at reasonable times for inspection by one or more representatives of the Selling Holders, designated in writing by Holders of a transfer agent and registrar for all majority in Amount of Registrable Securities registered pursuant to the TZE be included in such Registration Statement and a CUSIP number for all such securities, in each case not later than the effective date of such registration; Registrable Securities being sold, and any attorney or accountant retained by any such Selling Holders (l) Cause all such securities registered hereunder to be listed on each securities exchange on which collectively, the same securities issued by the Company are then listed; (m) In connection with any underwritten offering meeting the requirements of Section 2.1(e“Inspectors”), enter into an underwriting agreement in form reasonably necessary to effect at the offer and sale of offices where normally kept, during reasonable business hours, at 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 indemnification and contribution obligations of such Holder time or times as shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain mutually convenient for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, Inspectors as 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwritergroup, all pertinent financial and other records, pertinent corporate documents and properties instruments of the CompanyCompany and its subsidiaries (collectively, the “Records”) as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and its subsidiaries to supply all information reasonably requested by any such Person Inspector in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibilityRegistration Statement; provided, provided however, that any such Person gaining access to information regarding the Company pursuant shall have no obligation to this Section 2.4(r) shall agree to hold such information in strict confidence and shall not make any disclosure or use provide any such information that prior to the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (i) execution by the release of party receiving such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.of

Appears in 1 contract

Samples: Registration Rights Agreement (Griffon Corp)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than two Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel 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, or Prospectus, furnish thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith. Notwithstanding anything herein to the Holder or group contrary, failure of the Holders copies to object within 2 Trading Days of all documents prepared to be filed, which documents receipt of a proposed filing shall be subject to deemed a consent of such filing by the review of, the Holder or group of Holders and their respective counsel;Holders. (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, ; (ii) prepare and file with cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and, as promptly as 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to the Holder or group of Holders and each underwriter, if any, without charge, be sold as many conformed copies promptly as such Holder or group of Holders or commercially practicable (i)(A) when any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of the Registration Statement and qualify whenever the securities covered by such registration statement pursuant to Commission comments in writing on the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition upon request provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request 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; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder, without charge, to the extent requested by such Holder, at least one conformed copy of 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 (including those previously furnished or incorporated by reference), in each case as soon as reasonably practicable following such request by the Holder. (f) Promptly deliver to each Holder, 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 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; PROVIDED, that the Company shall not be required to -------- qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (h) 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 pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each selling Holder 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the managing underwriter, with copies person thereof that has voting and dispositive control over the Shares. Each Holder agrees 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 cooperate with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, Company as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter Company in any connection with the preparation and filing of the Registration Statement, unless such underwritten offering and otherwise Holder has notified the Company in writing of such Holder's election to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoexclude all of such Holder's Registrable Securities from the Registration Statement.

Appears in 1 contract

Samples: Registration Rights Agreement (Tag It Pacific Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: 6.2.1 Not less than three Trading Days prior to the initiation filing of each registration and as a Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: shall (ai) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders each Purchaser and any counsel designated by any Purchaser (each, a "PURCHASER COUNSEL"), copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Purchasers and each Purchaser Counsel, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the Holder or group reasonable opinion of Holders and their respective counsel;each Purchaser Counsel, to conduct a reasonable investigation within the meaning of the Securities Act. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each 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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within ten days, to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Purchasers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (viv) 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 Purchasers thereof as set forth in the TZE Registration Statement as so amended or in such Prospectus as so supplemented. 6.2.3 Notify the Purchasers of Registrable Securities to be sold and each Purchaser Counsel as promptly as reasonably possible, and (if requested by any such Person) confirm such notice in writing no later than one Trading Day thereafter, of any of the following events: (i) the Commission notifies the Company whether there will be a "review" of any Registration Statement. ; (cii) Furnish the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to the Holder or group each Purchaser a copy of Holders such comments and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders all written responses thereto); (iii) any Registration Statement or any 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 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 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; (fiv) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal Federal or state governmental authority requests any amendment or regulatory authority for amendments or supplements supplement to the TZE any Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement become ineligible for inclusion 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 to be delivered pursuant to the Securities Act of the occurrence of so that it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. 6.2.4 Use its commercially reasonable best efforts to avoid the issuance of or, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement toif issued, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were made not misleading; (h) Prevent or obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of any preliminary Registration Statement, or final Prospectus;(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. (i) Promptly incorporate in a Prospectus supplement 6.2.5 Furnish to each Purchaser and each 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 post-effective amendment such information as the managing underwriter deemed to be incorporated therein by reference, and the Holder or group of Holders agree should be included therein relating all exhibits to the plan extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of distribution such documents with respect the Commission. 6.2.6 Promptly deliver to each Purchaser and each 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 securities, and make all required filings Persons may reasonably request. The Company hereby consents to the use of such Prospectus and each amendment or supplement or post-effective amendment as soon as reasonably practicable after being notified thereto by each of the matters to be incorporated selling Purchasers in such Prospectus supplement or post-effective amendment; (j) Cooperate connection 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 Registrable Securities covered by “cold comfort” letters as the managing underwriter reasonably requests, dated the date of execution of the underwriting agreement such Prospectus and brought down to the closing pursuant to the underwriting agreement; (p) Cooperate with any Holder amendment 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related supplement thereto.

Appears in 1 contract

Samples: Securities Purchase Agreement (Utix Group Inc)

Registration Procedures. In connection with the case of each registration effected by the Company Corporation’s Piggyback Registration obligations pursuant to this Article II4 of the Agreement, the Company Corporation will use its commercially reasonable best efforts to effect such registration to permit the sale of securities in accordance with Article 4 of the intended method Agreement to effect the qualification for the offer and sale or methods other disposition or Distribution of distribution Qualifying Securities of MDCI in one or more Canadian Reporting Jurisdictions as directed by MDCI, and in pursuance thereof the Corporation will 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 topracticable: (a) Prepare in accordance with Article 4 of the required TZE Registration StatementAgreement, prepare and file in the English language, with the applicable Securities Regulatory Authorities a preliminary Prospectus and, promptly thereafter, a final Prospectus under and in compliance with the applicable Canadian Securities Laws, relating to the applicable Piggyback Registration, including all exhibits and exhibits, financial statements and such other related documents required pursuant to by the applicable Securities Act Regulatory Authorities to be filed therewith, and before filing use its commercially reasonable efforts to cause such registration statementProspectus to be receipted; and the Corporation will furnish to MDCI and the managing underwriters or underwriters, or if any, copies of such preliminary Prospectus and final Prospectus and any amendments or supplements theretoin the form filed with the applicable Securities Regulatory Authorities, or promptly after the filing of such preliminary Prospectus and final Prospectus, furnish to the Holder amendments or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counselsupplements; (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 Registrable Securities for the Effectiveness Period, (iib) prepare and file with the Commission as promptly as practicable any additional registration statements applicable Securities Regulatory Authorities such amendments and supplements to the preliminary Prospectus and final Prospectus as may be necessary in order to register for resale complete the Distribution of all such Qualifying Securities and as required under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) comply in all material respects with the applicable provisions of the Canadian 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.Laws; (c) 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 Holders or any 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 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 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; (f) Notify the Holder or group of Holders notify MDCI and the managing underwriterunderwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documentswriting, as soon as reasonably practicable after notice thereof is received by the Company, Corporation: (i) when the TZE Registration Statement, preliminary Prospectus and final Prospectus or any amendment or supplement thereto, thereto has been filed or becomes effective been receipted, and when the applicable Prospectus has been filedfurnish to MDCI and managing underwriters or underwriters, if any, with copies thereof; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority applicable Securities Regulatory Authorities for amendments or supplements to the TZE Registration Statement preliminary Prospectus or the final Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission applicable Securities Regulatory Authorities of any stop order suspending or cease trade order relating to the effectiveness of the TZE Registration Statement Prospectus or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary Prospectus or final Prospectus or the initiation, initiation or written threatened initiation, threatening of any proceedings for such purposes; and (iiiv) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of the securities so registered Qualifying Securities for offering or sale in any jurisdiction or the initiation, initiation or written threatened initiation, threatening of any proceeding for such purpose; ; (d) promptly notify MDCI and (iii) at any time the managing underwriter or underwriters, if any, when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act Corporation becomes aware of the occurrence happening of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an contains 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 statement therein (in the case of the Prospectus in light of the circumstances under which they were made, ) when such Prospectus was delivered not misleading, fails to constitute full, true and following plain disclosure of all material facts regarding the Qualifying Securities when such notification Prospectus was delivered or if for any other reason it will be necessary during such time period to amend or supplement the preliminary Prospectus or the final Prospectus in order to comply with Canadian Securities Laws and, in either case as promptly as practicable, prepare and file with the applicable Securities Regulatory Authorities, and furnish to MDCI and the Holder managing underwriters or group of Holders a reasonable number of copies of underwriters, if any, a supplement to, or an amendment of, to such preliminary Prospectus as may be necessary so that, as thereafter delivered to the purchasers of or final Prospectus which will correct such securities, statement or omission or effect such Prospectus 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 in light of the circumstances under which they were made not misleadingcompliance; (he) Prevent or use commercially reasonable efforts to obtain the withdrawal of any stop order, cease trade order or other order against the Corporation or affecting the securities of the Corporation suspending the use of any Prospectus or suspending the qualification of any Qualifying Securities covered by the Prospectus, or the initiation or the threatening of any proceedings for such purposes; (f) furnish to MDCI and each managing underwriter or underwriters, if any, copies of the preliminary Prospectus, final Prospectus or final any amendments or supplements thereto, and provide MDCI and its counsel with a reasonable opportunity to review and provide comments to the Corporation on the Prospectus; (ig) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter deliver to MDCI 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 underwriterunderwriters, if any, to facilitate without charge, as many commercial copies of the timely preparation preliminary Prospectus and delivery of certificates representing securities to the final Prospectus and any amendment or supplement thereto as such Persons may reasonably request (it being understood that the preliminary Prospectus and the final Prospectus or any amendment or supplement thereto may only be sold that are used by MDCI and the underwriters, if any, in a form eligible for deposit connection with The Depository Trust Company the offering 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 the Qualified Securities covered by the preliminary Prospectus and the final Prospectus or any amendment or supplement thereto in any underwritten offering that meets the requirements of Section 2.1(e); (k) Provide a transfer agent and registrar for all accordance with applicable Canadian Securities registered Laws and, if applicable, pursuant to the TZE Registration Statement terms and a CUSIP number for all such securities, in each case not later than the effective date conditions of such registration; (l) Cause all such securities registered hereunder to be listed on each securities exchange on which the same 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 customary form to be entered into among the Corporation, MDCI and the underwriters, if any) and such other documents as MDCI may reasonably necessary request in order to effect facilitate the offer and sale disposition of the Qualifying Securities by 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offeringPerson; (nh) In connection with any underwritten offering meeting on or prior to the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel date on which a receipt is issued for the Company dated Prospectus by the date of the closing pursuant applicable Securities Regulatory Authorities, use commercially reasonable efforts to the underwriting agreement, in customary form, scope and substance, which opinion shall be reasonably satisfactory to such Holder or group of Holders and to the underwriter, as the case may bequalify, and their respective counsel; (o) In connection cooperate with any underwritten offering meeting the requirements of Section 2.1(e) pursuant to the TZE Registration StatementMDCI, 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 underwriterunderwriters, if any, participating in the disposition of such securities and their respective counsel in connection with the qualification of, such Qualifying Securities for offer and sale under the applicable Canadian Securities Laws, as any filings such Person or underwriter reasonably requests in writing provided that the Corporation will not be required to be made with the Financial Industry Regulatory Authority, Inc.qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject; (qi) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In in connection with any underwritten offering meeting enter into customary agreements, including an underwriting agreement with the requirements underwriter or underwriters, such agreements to contain such representations, warranties and indemnities by the Corporation and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions; (j) use its commercially reasonable efforts to obtain a customary legal opinion, in the form and substance as is customarily given by external company counsel in securities offerings, addressed to MDCI and the underwriters, if any, and such other Persons as the underwriting agreement may reasonably specify, and a customary “comfort letter” from the Corporation’s auditor and/or the auditors of Section 2.1(eany financial statements included or incorporated by reference in a Prospectus; (k) make available upon reasonable notice at reasonable times furnish to MDCI and for reasonable periods for inspection by a representative appointed by any Holder, by the managing underwriter and by any attorneyor underwriters, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Companyif any, and such other Persons as MDCI may reasonably specify, such corporate certificates, satisfactory to MDCI acting reasonably, as are customarily furnished in securities offerings, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other matters as MDCI may reasonably request; (l) use commercially reasonable efforts to cause all of Qualifying Securities covered by the Company’s officers, directors and employees Prospectus to be listed on each Exchange on which Common Shares are then listed or quoted; (m) participate in such marketing efforts as MDCI and the independent public accountants who have certified Corporation jointly determine (with advice from the Company’s financial statements to make themselves available to discuss the business of the Company managing underwriter or underwriters, if any) are reasonably necessary, such as “roadshows”, institutional investor meetings and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the Holder is aware; or (iv) such information is independently developed by such Personsimilar events; and (sn) In connection with any underwritten offering meeting the requirements of Section 2.1(e), cause the senior executive officers of the Company to participate in the customary “road show” presentations that take such other actions and execute and deliver such other documents as may be reasonably requested by necessary to give full effect to the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretorights of MDCI under the Agreement.

Appears in 1 contract

Samples: Investor Rights and Governance Agreement (Equinox Gold Corp.)

Registration Procedures. In connection with the case of each registration effected by the Company pursuant Company's obligation to this Article IIfile a Registration Statement as provided in Section 3 hereof, the Company will 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 topossible: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, a Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectus, furnish to Purchaser and the Holder or group holders of Holders copies the Registrable Securities covered by such Registration Statement a copy of all such documents prepared proposed to be filed, which documents shall will be subject to the review ofof Purchaser and such holders and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority in aggregate principal amount of the Registrable Securities covered by such Registration Statement shall reasonably object (provided that the Company may assume, for the Holder or group purposes of Holders and their respective counselthe foregoing that any holder of Registrable Securities has no objection if the Company has not received notice from such holder within five business days after delivery of such documents to such holder); (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 Registrable Securities for the Effectiveness Period, (iib) prepare and file with the Commission as promptly as practicable any additional registration statements SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be necessary in order required by the rules, regulations or instructions applicable to register for resale under the registration form utilized by the Company or by the Securities Act all of or rules and regulations thereunder for shelf registration or otherwise necessary to keep the Registrable Securities, (iii) Registration Statement effective for the applicable period and cause any related the Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from 424 under the Commission with respect to a Registration Statement or any amendment thereto, Securities Act; and (v) 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 TZE such Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders sellers thereof as set forth in such Registration Statement or supplement to the TZE Registration Statement.Prospectus; (c) Furnish notify Purchaser and the holders of Registrable Securities promptly, and confirm such advice in writing: (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Holder Registration Statement or group any post-effective amendment, when the same has become effective, (2) of Holders and each underwriterthe issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, if anyand (3) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment; (e) furnish, without charge, as many to Purchaser and each selling holder of Registrable Securities, at least one conformed copies as such Holder or group of Holders or any underwriter may reasonably request copy 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); (df) Furnish, deliver to Purchaser and each selling holder of Registrable Securities without charge, such number as many copies of Prospectuses, the Prospectus (including any each preliminary Prospectuses, prospectus) and other documents incident thereto, including any amendment of or supplement thereto as such Persons may reasonably request; the Company consents to the Prospectus, as use of the Holder Prospectus or group any amendment or supplement thereto by each of Holders may from time to time reasonably requestPurchaser and 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; (eg) On or at least 14 days prior to filing of the date Registration Statement, use its best efforts to furnish by certified mail to the beneficial holders of the Registrable Securities, at the addresses of record specified on which the TZE transfer books held by the Trustee, notice of the Company's intention to file a Registration Statement is declared effective, and request that all holders of Registrable Securities desiring to the extent required by applicable law, register and qualify the securities covered by such registration statement sell their Registrable Securities pursuant to the securities or blue sky laws Registration Statement notify the Company promptly in writing; (h) cooperate with Purchaser and the selling holders of each jurisdiction as shall Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be reasonably requested sold and not bearing any restrictive legends; (i) use its best efforts to cause the Registrable Securities covered by the Holder Registration Statement to be registered with or group approved by such governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of Holders; providedsuch Registrable Securities in such jurisdictions within the United States of America as the sellers may specify in response to inquiries to be made by the Company, however, provided 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 file a take any action which would subject it to general consent to service of process in any such states or jurisdictions jurisdiction where it is not then so subject; (fj) Notify the Holder or group of Holders and the managing underwriteras provided in Section 3, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event shall occur as a result of which it is necessary, in the opinion of counsel for the Company or for the holders of a majority of the Registrable Securities, to amend or supplement the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary order to make the statements therein Prospectus not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleading, and following such notification promptly prepare and furnish a supplement or post-effective amendment to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement to, the related Prospectus or an amendment of, such Prospectus as may be necessary any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such securitiesthe Registrable Securities, such the Prospectus shall 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 light of the circumstances under which they were 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 obtain a CUSIP number for all such securitiesRegistrable Securities (unless already obtained), in each case not later than the effective date of such registrationEffective Date; (l) Cause make available for inspection during normal business hours by a representative of the holders of a majority of Registrable Securities and any attorney or accountant retained by such representative, all material financial and other records, pertinent and material corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all material information reasonably requested by such representative or any such attorney or accountant in connection with the Registration Statement; provided that all such securities registered hereunder records, information or documents shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order or is generally available to be listed on each securities exchange on which the same securities issued by the Company are then listedpublic other than as a result of disclosure in violation of this paragraph (l); (m) In connection otherwise use its best efforts to comply with any underwritten offering meeting all applicable rules and regulations of 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 indemnification and contribution obligations of such Holder shall be several and not jointSEC, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 make generally available to its their security holders, as soon as reasonably practicable, holders an earnings earning statement satisfying the provisions of Section 11(a) of the Securities ActAct (in accordance with Rule 158 thereunder or otherwise), no later than 45 days after the end of the 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company's first fiscal quarter commencing after the Effective Date, which statements shall cover said 12-month period; (rn) In cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended from time to time (the "TIA"), and, in connection therewith, cooperate with any underwritten offering meeting the requirements Trustee under the Indenture and the holders of Section 2.1(e) make available upon reasonable notice at reasonable times the Debentures 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 for reasonable periods for inspection by a representative appointed by any Holderexecute, by and use their best efforts to cause the managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriterTrustee to execute, all pertinent financial documents as may be required to effect such changes, and all other records, corporate forms and documents and properties required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; and (o) if at any time an event of the Companykind described in Section 4(j) shall occur, promptly notify Purchaser and cause all the holders of Registrable Securities that the use of the Company’s officersProspectus must be discontinued. Each selling holder of Registrable Securities as to which any registration is being effected agrees, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality condition to the Company registration obligations with respect to such information and of which holder provided herein, to furnish to the Holder is aware; or (iv) Company such information is independently developed regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Person; and (s) In connection with Registrable Securities that, upon receipt of any underwritten offering meeting notice from the requirements of Section 2.1(eCompany described in paragraph 4(o), cause the senior executive officers such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(j) hereof, or until it is advised in writing by the Company to participate (which notice the Company shall give as promptly as reasonably possible), that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the customary “road show” presentations that may be reasonably requested Prospectus, and, if so directed by the managing underwriter Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in any such underwritten offering and otherwise to facilitateholder's possession, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoof the Prospectus covering such Registrable Securities current at the time of receipt of such notice.

Appears in 1 contract

Samples: Registration Rights Agreement (Alternative Living Services Inc)

Registration Procedures. In (a) Subject to Section 1(d), whenever the case Holders of each registration effected by the Company Registrable Securities have requested that any Registrable Securities be registered pursuant to this Article IIAgreement, the Company will use its commercially reasonable best efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method of disposition thereof. Without limiting the generality of the foregoing, the Company will use its commercially reasonable efforts to, as expeditiously as possible: (i) prepare and (within sixty (60) days after the end of the thirty-day period within which requests for registration may be given to the Company pursuant hereto) file with the Commission a Registration Statement with respect to such Registrable Securities, make all required filings with FINRA and thereafter use its commercially reasonable efforts to cause such Registration Statement to become effective; provided, however, that (A) before filing a Registration Statement or any amendments or supplements thereto, or any prospectuses or prospectus supplements, the Company will furnish to one firm of counsel selected by the Holders in accordance with Section 4(b), copies of all such documents proposed to be filed, which documents will be subject to review of such counsel at the Company’s expense, (B) the Company will not file such Registration Statement, amendment or supplement, prospectus or prospectus supplement, prior to the date that is five Business Days from the date that such counsel received such document unless such counsel earlier informs the Company that it has no objections to the filing of such Registration Statement, amendment or supplement, prospectus or prospectus supplement, and (C) the Company will not file any Registration Statement, amendment or supplement to such Registration Statement, or any prospectuses or prospectus supplements, to which such counsel will have reasonably objected in writing on the grounds that (and explaining why) such Registration Statement, amendment or supplement, prospectus or prospectus supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder; (ii) prepare and file with the Commission such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective for a period of either (A) not less than twelve months or, if such Registration Statement relates to an underwritten offering, such longer period as in the reasonable opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or (B) such shorter period as will terminate when all of the securities covered by such Registration Statement have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statement (but in any event not before the expiration of any longer period required under the Securities Act), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such Registration Statement; (iii) furnish to each seller of Registrable Securities such number of copies, without charge, of such Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, free writing prospectuses under Rule 433 under the Securities Act, all exhibits and other documents filed therewith and such other documents as such seller may reasonably request, including in order to facilitate the disposition of the Registrable Securities owned by such seller; (iv) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things that may be necessary or reasonably advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction); (v) use its commercially reasonable efforts to cause all Registrable Securities covered by such Registration Statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies as may be necessary or reasonably advisable in light of the business and operations of the Company to enable the seller or sellers thereof to consummate the disposition of such Registrable 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 disposition thereof. At its expense, the Company will use its reasonable best efforts to: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel; (ivi) Prepare and file with promptly notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Commission such amendmentsSecurities Act, including post-effective amendmentsupon discovery that, to or upon the TZE Registration Statement and discovery of the Prospectus used in connection therewith happening of any event as may be a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to keep make the TZE Registration Statement continuously effective as to statements therein not misleading in the Registrable Securities for light of the Effectiveness Periodcircumstances under which they were made, (ii) prepare and file with the Commission and, as promptly as practicable practicable, prepare and furnish to such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any additional registration fact necessary to make the statements as may be necessary therein not misleading in order to register for resale the light of the circumstances under which they were made; (vii) notify each seller of any Registrable Securities covered by such Registration Statement (A) when the prospectus, any prospectus supplement, any free writing prospectuses under Rule 433 under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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. (c) 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 Holders or any 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed and, with respect to such Registration Statement or becomes any post-effective and amendment, when the applicable Prospectus same has been filed; and become effective, (iiB) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE such Registration Statement or the Prospectus to amend or to supplement such prospectus or for additional information; , and (g) Promptly notify the Holder or group of Holders (iC) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE such Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, initiation of any proceedings for any of such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were made not misleading; (hviii) 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 its commercially reasonable efforts 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 cause all such securities, in each case not later than the effective date of such registration; (l) Cause all such securities registered hereunder Registrable Securities to be listed on each securities exchange on which the same similar securities issued by the Company are then listedlisted or, if no similar securities issued by the Company are then listed on any securities exchange, use its commercially reasonable efforts to cause all such Registrable Securities to be listed on the New York Stock Exchange or The NASDAQ Stock Market LLC (as determined by the Holders of a majority of the Registrable Securities being sold in such offering); (mix) In provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement; (x) enter into such customary agreements, including underwriting agreements with customary provisions (including, but not limited to, indemnities to the effect and to the extent provided in Section 5, provisions for the delivery of officer’s certificates, opinions of counsel, Rule 10b-5 negative assurance letters and accountants’ “comfort” letters) and take all such other actions as the Required Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a share split or a combination of shares, to the extent approved by the stockholders of the Company required to approve any such action); (xi) furnish or make available (and cause the Company’s officers, directors, employees and independent accountants to furnish or make available) for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such seller or underwriter, such information and assistance as such seller, underwriter, attorney, accountant or agent may reasonably request in connection with any underwritten offering meeting “due diligence” effort that such Person deems appropriate in connection with such Registration Statement, including, but not limited to, all financial and other records, pertinent corporate documents and documents relating to the requirements business of Section 2.1(e)the Company, enter provided that each Holder, underwriter, accountant or other agent (A) enters into an underwriting a confidentiality agreement in form and substance reasonably necessary satisfactory to effect the offer Company and (B) minimizes the disruption to the Company’s business in connection with the foregoing; (xii) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (xiii) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use its commercially reasonable efforts promptly to obtain the withdrawal of such securitiesorder; (xiv) enter into such agreements and take such other actions as the sellers of Registrable Securities or the underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, provided that (i) such underwriting agreement contains reasonable including, without limitation, preparing for and customary provisions, (ii) if participating in such underwriting, a Holder shall also enter into number of “road shows” and perform its respective obligations pursuant all such other customary selling efforts as the underwriters reasonably request in order to expedite or facilitate such agreement, (iii) if participating in such underwriting, the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offeringdisposition; (nxv) In connection with obtain one or more comfort letters, addressed to underwriters in any underwritten offering meeting the requirements of Section 2.1(e)offering, obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to under the underwriting agreement, in customary form, scope and substance, which opinion shall be reasonably satisfactory to agreement for such Holder or group of Holders offering (and to the underwriterextent permitted by accounting rules and guidance, as the case may besellers of Registrable Securities, and their respective counsel; (o) In connection with any underwritten offering meeting dated the requirements effective date of Section 2.1(e) pursuant to the TZE such 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 signed by the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” comfort letters as the managing underwriter Holders of a majority of the Registrable Securities being sold in such offering reasonably requestsrequest; (xvi) provide legal opinions and negative assurance letters of the Company’s outside counsel, addressed to the Holders of the Registrable Securities being sold, dated the effective date of such Registration Statement, each amendment and supplement thereto (and, if such registration includes an underwritten public offering, dated the date of execution of the underwriting agreement and brought down to the closing pursuant to under the underwriting agreement;), with respect to the Registration Statement, as amended and supplemented, and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and (pxvii) Cooperate with any Holder use its commercially reasonable efforts to take or group of Holders cause to be taken all other actions, and each underwriterdo and cause to be done all other things, if any, participating necessary or reasonably advisable in the disposition opinion of any seller of Registrable Securities to effect the registration of such securities and their respective counsel Registrable Securities contemplated hereby. (b) The Company agrees not to file or make any amendment to any Registration Statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection with therewith, or any filings required to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of free writing prospectus under Rule 433 under the Securities Act; (r) In connection with , that refers to any underwritten offering meeting the requirements of Section 2.1(e) make available upon reasonable notice at reasonable times and for reasonable periods for inspection Holder covered thereby by a representative appointed by any Holdername, by the managing underwriter and by any attorney, accountant or other agent retained by any otherwise identifies such Holder or as the holder of any such underwriter, all pertinent financial and other records, corporate documents and properties securities of the Company, and cause all without the consent of the Company’s officerssuch Holder, directors and employees and the independent public accountants who have certified the Company’s financial statements such consent not to make themselves available to discuss the business of the Company be unreasonably withheld or delayed, unless and to supply all information reasonably requested by any the extent such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; . (iic) such information The Company may require each Holder of Registrable Securities as to which any registration is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available being effected to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to furnish the Company with respect to such information regarding such Holder and pertinent to the disclosure requirements relating to the registration and the distribution of which the 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 securities as the Company may from time to participate time reasonably request in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretowriting.

Appears in 1 contract

Samples: Registration Rights Agreement (MxEnergy Holdings Inc)

Registration Procedures. In connection with the case obligations of each registration effected by the Company with respect to any Registration Statement pursuant to this Article IISections 2.1 and 2.2 hereof, the Company will 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 toshall: (a) Prepare and file with the required TZE SEC as soon as practicable each such Registration Statement, including all exhibits and financial statements required pursuant Statement (but in any event on or prior to the Securities Act date of filing thereof required under this Agreement) and cause each such Registration Statement to be filed therewithbecome effective and remain effective as provided herein; provided, and however, that before filing any such registration statement, Registration Statement or any Prospectus or any amendments or supplements theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference, or Prospectusincluding such documents filed under the Exchange Act that would be incorporated therein by reference), furnish the Company shall afford promptly to the Holder Holders of the Registerable Securities covered by such Registration Statement, their counsel and the managing underwriter or group of Holders underwriters, if any, an opportunity to review copies of all such documents prepared proposed to be filed, which documents shall be subject filed a reasonable time prior to the review ofproposed filing thereof. The Company shall not file any Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority of the Registerable Securities covered by such Registration Statement, their counsel, or the Holder managing underwriter or group underwriters, if any, shall reasonably object in writing, unless failure to file any such amendment or supplement would involve a violation of Holders and their respective counsel;the Securities Act or other applicable law. (ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the TZE such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with time periods prescribed hereby; cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)prospectus supplement, and, and as so supplemented or amended, to be filed pursuant to Rule 424424 (or any similar provision then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or such Prospectus as so supplemented. (c) Notify the Holders of Registerable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, (ivi) respond as promptly as reasonably possible to when a Prospectus or any comments received from the Commission prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment theretopost-effective amendment, and when the same has become effective (v) comply including 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. (c) Furnish to the such notice a written statement that any Holder or group of Holders and each underwritermay, if anyupon request, obtain, without charge, as many one conformed copies as copy of such Holder or group of Holders or any 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 schedules and all exhibits (including those incorporated by referenceexhibits); (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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE such Registration Statement or of any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, initiation or written threatened initiation, threatening of any proceedings for such purposes; that purpose, (iiiii) 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 the securities so registered Registration Statement or any of the Registerable Securities covered thereby for offering offer or sale in any jurisdiction or (B) the initiation, or written threatened initiation, initiation of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(av) of the Securities Act; (r) In connection with happening of any underwritten offering meeting event, the requirements existence of 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 managing underwriter and by any attorney, accountant condition or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided becoming known that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.requires the

Appears in 1 contract

Samples: Registration Rights Agreement (Packaged Ice Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, (i) furnish to the Holder or group of Holders Purchasers and their counsel copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of, the Holder or group of Holders such Purchasers and their counsel, 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 conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which Purchasers holding a majority of the Registrable Securities shall reasonably object. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE each 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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; and (iviii) respond as promptly as reasonably possible possible, and in any event within ten days, to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, thereto and (v) comply in as promptly as reasonably possible provide the Purchasers true and complete copies of all material respects with the provisions of the Securities Act correspondence from 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 Commission relating to the terms of this Agreement) with the intended methods of disposition by the Holders thereof as set forth in the TZE Registration Statement. (c) 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 Holders or any 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 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 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; (f) Notify the Holder or group Purchasers of Holders Registrable Securities to be sold and the managing underwriter, if anytheir counsel as promptly as reasonably possible, and (if requestedrequested by any such Person) confirm such advice notice in writing and provide copies no later than one Trading Day following such request, of any of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, following events: (i) when the TZE Commission notifies the Company whether there will be a "review" of any Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or comments in writing on any request by Registration Statement (in which case the Company shall deliver to each Purchaser a copy of such comments and of all written responses thereto); (iii) the Commission or any other federal Federal or state governmental authority requests any amendment or regulatory authority for amendments or supplements supplement to the TZE any Registration Statement or the Prospectus or for requests additional information; information related thereto; (giv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (v) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and (iiivi) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement become ineligible for inclusion 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 to be delivered pursuant to the Securities Act of the occurrence of so that it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; or (vii) any Registration Statement or any post-effective amendment is declared effective. (d) Use its best efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of 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) Furnish to each Purchaser and its 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 following all exhibits to the extent requested by such notification Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission. (f) Promptly deliver to each Purchaser and its 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. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling 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 furnish 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 Holder 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 group another Eligible Market. (h) Prior to any public offering of Holders Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Purchasers and 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 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 reasonable number Registration Statement, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of copies this clause (h), it would not be obligated to be so qualified or to consent to general service of process in any such jurisdiction. (i) Upon the occurrence of any event described in Section 6.2(c)(vi), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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) Comply with all applicable rules and regulations of the Commission. (k) Cooperate with the Holder or group of Holders and the managing underwriter, if any, Purchasers to facilitate the timely preparation and delivery of certificates representing securities Registrable Securities to be sold that are in delivered to a form eligible for deposit with The Depository Trust Company and that do not bear any transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such securities Registrable Securities to be in such denominations and registered in such names as the managing underwriter any such Purchasers 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;request. (l) Cause all such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 due diligence investigation undertaken by the disposition of such securities and their respective counsel Purchasers in connection with the sale of Registrable Securities, including without limitation by making available any filings required to be made with documents and information; provided that the Financial Industry Regulatory Authority, Inc.; (q) Make Company will not deliver or make available to its security holdersany Purchaser material, as soon as reasonably practicablenonpublic information unless such Purchaser specifically requests in advance to receive material, an earnings statement satisfying nonpublic information and such Purchaser agrees to maintain the provisions confidentiality of Section 11(a) of the Securities Act; (r) In connection with such information and agrees not to sell or transfer any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business securities of the Company and to supply all information reasonably requested by any such Person except in connection compliance with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by applicable law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Securities Purchase Agreement (Pfsweb Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five (5) Trading Days prior to the filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders owning Registrable Securities Act registered under such Registration Statement copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents will be subject to the review of such Holders, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file any such Registration Statement or any such Prospectus or any amendments or supplements theretothereto to which the Holders of a majority of the Registrable Securities registered thereunder shall reasonably object in good faith, or Prospectus, furnish to provided that the Holder or group Company is notified of such objection in writing no later than five (5) Trading Days after such Holders have been so furnished copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the a Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the applicable Registrable Securities for the applicable Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements if required in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a such Registration Statement or any amendment theretothereto and, as promptly as reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement; and (viv) 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 TZE such Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the Holders' intended methods of disposition by the Holders thereof as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to the Holder or group of Holders and each underwriter, if any, without charge, be sold as many conformed copies promptly as such Holder or group of Holders reasonably possible (i)(A) when a Prospectus or any underwriter may reasonably request Prospectus supplement or post effective amendment to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a "review" of the TZE a Registration Statement and whenever the Commission comments in writing on a Registration Statement (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 a Registration Statement or any amendment or post-effective amendment theretoamendment, 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments request by the Commission or any request other Federal or state governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to such Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of such Registrable Securities or the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event (including the passage of time that makes the financial statements included in the Registration Statement ineligible for inclusion therein) of which the Company has knowledge as a result of which the Prospectus included in such registration statementa Prospectus, as then in effect, includes an contains 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 therein, in light of the circumstances under which they were made, not misleading. (d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as promptly as reasonably practicable. (e) Furnish to each Holder, 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person in writing (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (f) Promptly deliver to each Holder, 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 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). (g) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for 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 to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (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 delivered to a transferee pursuant to the applicable Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post effective amendment, to the applicable Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither such Registration Statement nor the purchasers of such securities, such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If the Company notifies the Holders in accordance with clauses (hii) Prevent or obtain the withdrawal through (v) of any stop order or other order suspending Section 3(c) above to suspend the use of any preliminary or final Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus; (i) Promptly incorporate in . The Company will use its commercially reasonable efforts to ensure that the use of a Prospectus supplement or post-effective amendment such information 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 managing underwriter availability of a Registration Statement and the Holder or group of Holders agree should be included therein relating applicable Prospectus, subject to the plan payment of distribution with respect liquidated damages pursuant to such securitiesSection 2(b), and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters for a period not to exceed sixty (60) Trading Days (which need not be incorporated consecutive days) in such Prospectus supplement or post-effective amendment;any twelve (12) month period. (j) Cooperate Comply in all material respects with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require each Holder, upon five (5) Trading Days' notice, 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish to the Company a certified statement as to, among other things, the number of Ordinary Shares beneficially owned by such Holder and the managing underwriter, with copies to any Holder or group of Holders, person that has voting and dispositive control over such Shares. It shall be 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 condition precedent 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 obligations of the Company to participate in take any action pursuant to this Agreement with respect to the customary “road show” presentations Registrable Securities of any Holder that may be reasonably requested by such Holder shall furnish to the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.Company the Selling Stockholder Questionnaire attached hereto as Annex B.

Appears in 1 contract

Samples: Registration Rights Agreement (Attunity LTD)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 shall: 1. Not less than five business days prior to the initiation filing of each registration and as Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to the completion thereof. At its expensebe incorporated therein by reference), the Company will use its reasonable best efforts to: shall, (ai) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Holder or group Company is notified of such objection in writing no later than 4 business days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE Registration Statement. (c) 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 Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment as so amended 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretosupplemented.

Appears in 1 contract

Samples: Private Placement Subscription Agreement (ZK International Group Co., Ltd.)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders and the Special Counsel copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and the Special Counsel, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto, or Prospectus, furnish thereto to which the Holder or group Holders of Holders copies a majority of all documents prepared to be filed, which documents the Registrable Securities and the Special Counsel shall be subject to the review of, the Holder or group of Holders and their respective counsel;reasonably object. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the a Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within ten Trading Days, to any comments received from the Commission with respect to a Registration Statement or any amendment theretothereto and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE a Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold and the Holder or group Special Counsel as promptly as reasonably possible (and, in the case of Holders (i)(A) below, not less than three Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of a Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or a Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) File one or more additional Registration Statements if the number of Registrable Securities issuable upon conversion of the Debentures relating to such Registration Statement would require the issuance of in excess of 85% of the number of shares of Common Stock then registered in such Registration Statement. Such additional Registration Statement shall cover the resale by the Holders of not less than 120% of the number of shares required in order that all Registrable Securities issuable upon conversion of the Debentures relating to such Registration Statement would then be registered. (e) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as reasonably practicable. (f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of a Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and following such notification promptly prepare and furnish 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 or group of Holders a reasonable number of 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. 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, 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, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified 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 delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by 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 Holders may request. (j) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and registrar for all Securities registered pursuant to regulations of the TZE Registration Statement and a CUSIP number for all such securities, in each case not later than the effective date of such registration;Commission. (l) Cause all such securities registered hereunder The Company may require each selling Holder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitateCommission, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretothe controlling person thereof.

Appears in 1 contract

Samples: Registration Rights Agreement (Achievement Tech Holdings Inc /Id/)

Registration Procedures. In the case of each registration effected by the Company pursuant to this Article II, the Company will 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 Company shall notify the required TZE Holder of the effectiveness of the Registration Statement, including all exhibits Statement and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, shall furnish to the Holder or group such number of Holders copies of all documents prepared to be filedthe Registration Statement (including any amendments, which documents shall be subject to the review ofsupplements and exhibits), the prospectus contained therein (including each preliminary prospectus), any documents incorporated by reference in the Registration Statement and such other documents as the Holder or group may reasonably request in order to facilitate its sale of Holders and their respective counsel;the Registrable Shares in the manner described in the Registration Statement. (ib) Prepare The Company shall prepare and file with the Commission SEC from time to time such amendments, including post-effective amendments, amendments and supplements to the TZE Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective as and to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all the Registrable Securities covered by Shares until the TZE earlier of (i) such time as all of the Registrable Shares have been issued (pursuant to the Issuance Registration Statement) or disposed of (pursuant to the Initial Registration Statement, a Demand Registration Statement during the applicable period or a Piggyback Registration Statement) in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof Holder as set forth in the TZE Registration Statement or (ii) the date on which the Registration Statement ceases to be effective in accordance with the terms of Section 1. Upon ten (10) business days' notice, the Company shall file any supplement or post-effective amendment to the Registration Statement with respect to the Holder's interests in or plan of distribution of Registrable Shares that is reasonably necessary to permit the sale of the Holder's Registrable Shares pursuant to the Registration Statement. (c) Furnish The Company shall file any necessary listing applications or amendments to the Holder existing applications to cause the shares to be listed or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder quoted on the primary exchange or group of Holders quotation system on which the Common Stock is then listed or any 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);quoted. (d) Furnish, without charge, such number of Prospectuses, including any preliminary ProspectusesThe Company shall promptly notify the Holder of, and other documents incident theretoconfirm in writing, 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority SEC for amendments or supplements to the TZE Registration Statement or the Prospectus prospectus related thereto or for additional information; (g) Promptly . In addition, the Company shall promptly notify the Holder or group of Holders (i) of, and confirm in writing, the filing of the issuance by Registration Statement, any prospectus supplement related thereto or any post-effective amendment to the Commission of any stop order suspending Registration Statement and the effectiveness of any post-effective amendment. (e) The Company shall promptly notify the TZE Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiationHolder, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus prospectus relating to the TZE Registration Statement is required to be delivered pursuant to under the Securities Act Act, of the occurrence happening of any event as a result of which the Prospectus prospectus included in such registration statementthe Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. In such event and subject to paragraph 7 of this Agreement, and following such notification the Company shall promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, to or an amendment of, of such Prospectus prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securitiesRegistrable Shares, such Prospectus prospectus shall not contain 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, in light of the circumstances under which they were made are 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Beacon Properties Corp)

Registration Procedures. In the case of each registration effected by the Company Subject to Section 4.4, whenever any Registrable Securities are to be registered pursuant to Section 4.1 or Section 4.2 of this Article IIAgreement, the Company will use its commercially reasonable best efforts to effect such the registration to permit the and sale of securities such Registrable Securities as soon as reasonably practicable in accordance with the intended method or methods of distribution disposition thereof and pursuant thereto. The Company shall: 4.8.1 Prepare and file, within ninety (90) days of Closing, with respect to a registration pursuant to Section 4.1, and within (90) days of the receipt of the request, with respect to a registration pursuant to Section 4.2, with the SEC a Registration Statement with respect to such Registrable Securities, make all required filings with the Financial Industry Regulatory Authority and thereafter use its commercially reasonable efforts to cause such Registration Statement to become effective as expeditiously soon as reasonably practicable and will keep the Holders advised on a reasonably current basis to remain effective as to the initiation of each registration and as to the completion thereof. At its expenseprovided herein; provided that, the Company will use its reasonable best efforts to: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, a Registration Statement or any amendments or supplements thereto, or Prospectusthe Company will, at the Company’s expense, furnish or otherwise make available to the Holder or group of Holders Holders’ Counsel copies of all such documents prepared proposed to be filedfiled and such other documents reasonably requested by such counsel, which documents shall will be subject to the review ofand reasonable comment of such counsel at the Company’s expense, including any comment letter from the Holder SEC with respect to such filing or group the documents incorporated by reference therein, and if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of Holders such Registration Statement and their respective counselsuch other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s financial books and records, officers, accountants and other advisors; (i) 4.8.2 Prepare and file with the Commission SEC such amendments, including post-effective amendments, amendments and supplements to the TZE such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as for a period of either (i) not less than if such Registration Statement relates to an underwritten offering, such period as, based upon the opinion of counsel for the underwriters, a prospectus is required by law to be delivered in connection with sales of Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission by an underwriter or dealer or such shorter period as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act will terminate when all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented securities covered by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a such Registration Statement or any amendment thereto, and (v) comply in all material respects with the provisions have been disposed 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 seller or sellers thereof as set forth in such Registration Statement (but in any event not before the TZE expiration of any longer period required under the Securities Act) or (ii) continuously in the case of shelf registration statements and any shelf registration statement shall be re-filed upon its expiration (or in each case, such shorter period ending on the date that the securities covered by such shelf registration statement cease to constitute Registrable Securities), and cause the related prospectus to be supplemented by any prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such Registration Statement., and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; (c) 4.8.3 Furnish to the Holder or group of Holders each participating Holder, and each managing underwriter, if any, such number of copies, without charge, of such Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, any other prospectus (including any prospectus filed under Rule 424, Rule 430A or Rule 430B of the Securities Act and any “issuer free writing prospectus” as many conformed copies such term is defined under Rule 433 promulgated under the Securities Act), all exhibits and other documents filed therewith and such other documents as such Holder or group of Holders or any such managing underwriter may reasonably request including in order to facilitate the disposition of the TZE Registration Statement Registrable Securities owned by such Holder, and upon request a copy of 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)transmittal letters or other correspondence to or received from, the SEC or any other Governmental Authority relating to such offer; 4.8.4 Use commercially reasonable efforts to register or qualify (dor exempt from registration or qualification) Furnish, without charge, such number of Prospectuses, including any preliminary ProspectusesRegistrable Securities, and other documents incident thereto, including any amendment of keep such registration or supplement to the Prospectus, as the Holder qualification (or group of Holders may from time to time reasonably request; (eexemption therefrom) On or prior to the date on which the TZE Registration Statement is declared effective, to the extent required by applicable law, register and qualify the securities covered by under such registration statement pursuant to the other securities or blue sky laws of each jurisdiction such United States jurisdictions as shall any participating Holder reasonably requests and do any and all other acts and things that may be reasonably requested necessary or reasonably advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by the such Holder or group of Holders; provided(provided that, however, that the Company shall will not be required in connection therewith or as a condition thereto to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction, or to file a general (iii) consent to general service of process in any such states or jurisdictions where it is not then so subjectjurisdiction); (f) 4.8.5 Notify each participating Holder, the Holder or group of Holders Holders’ Counsel and the managing underwriterunderwriter(s), if any, and (if requested) confirm such advice in writing and provide copies at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the relevant documentshappening of any event that makes any statement made in the 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 changes in such Registration Statement, prospectus or documents and, as soon as reasonably practicable after notice thereof is received by (but subject to the Companydelay provisions of Section 4.4), prepare and furnish to such Holder a reasonable number of copies of a supplement or amendment to such prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of 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, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statement therein, in light of the circumstances in which they were made, not misleading; 4.8.6 Notify each participating Holder, the Holders’ Counsel and the managing underwriter(s), if any, (i) when such Registration Statement or the TZE Registration Statement, prospectus or any prospectus supplement or post-effective amendment or supplement thereto, has been filed and, with respect to such Registration Statement or becomes any post-effective and amendment, when the applicable Prospectus same has been filed; and become effective, (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority SEC for amendments or supplements to the TZE such Registration Statement or the Prospectus to amend or to supplement such prospectus or for additional information; , (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE such Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, initiation of any proceedings for such purposes; purpose, to the extent that it is aware of such proceedings, (iiiv) if at any time the representations and warranties of the Company contained in any underwriting agreement contemplated by Section 4.8.11 below cease to be true and correct in any material respect, and (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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of ; 4.8.7 Upon the occurrence of an event contemplated in Section 4.8.5 or in Section 4.8.6(ii), 4.8.6(iii), 4.8.6(iv) or 4.8.6(v) (but subject to the delay provisions of Section 4.4), prepare a supplement or amendment to the Registration Statement or supplement to the related prospectus or any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact document incorporated or omits to state a material fact required deemed to be stated incorporated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement toby reference, or an amendment of, file any other required document so that such Prospectus as may be necessary so that, prospectus as thereafter delivered to the purchasers of such securities, such Prospectus shall participating Holders will not contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made not misleadingmade; (h) Prevent 4.8.8 Use commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange on which Common Stock issued by the Company is then listed or, if no similar securities issued by the Company are then listed on any securities exchange, use its commercially reasonable efforts to cause all such Registrable Securities to be listed on the AMEX or obtain the withdrawal of any stop order or other order suspending NASDAQ stock market, as determined by the use of any preliminary or final ProspectusCompany; 4.8.9 Provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement; 4.8.10 Enter into such customary agreements (iincluding underwriting agreements and, lock-up agreements in customary form (excluding any lock-up of Registrable Securities), and including provisions with respect to indemnification and contribution in customary form) Promptly incorporate and take all such other customary actions as the participating Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, making members of management and executives of the Company available to participate in “road show,” similar sales events and other marketing activities; 4.8.11 In connection with any underwritten offering, make such representations and warranties to the participating Holders and the managing underwriter(s), if any, with respect to the business of the Company and the Company’s Subsidiaries, and the Registration Statement, prospectus, and documents incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by the issuer in underwritten offerings, and, if true, make customary confirmations of the same if and when requested; 4.8.12 If requested by any participating Holder, or the managing underwriter(s), if any, promptly include in a Prospectus 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 managing underwriter(s), if any, may reasonably request in order to permit the plan intended method of distribution with respect to of such securities, securities and make all required filings of such Prospectus prospectus supplement or post-effective such amendment as soon as reasonably practicable after being notified of the matters to be incorporated in Company has received such Prospectus supplement or post-effective amendmentrequest; (j) Cooperate 4.8.13 In the case of certificated Registrable Securities, cooperate with the Holder or group of participating Holders and the managing underwriterunderwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing securities Registrable Securities to be sold after receiving written representations from each Holder that are that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in a form eligible for deposit accordance with The Depository Trust Company and that do not bear any restrictive legendsthe Registration Statement, and enable such securities Registrable Securities to be in such denominations and registered in such names as the Holders or managing underwriter underwriters, if any, may request at least two Business Days business days prior to any sale of securities such Registrable Securities; 4.8.14 Make available for inspection by any participating Holders and the Holders’ Counsel, any underwriter participating in any underwritten offering that meets the requirements of Section 2.1(e); (k) Provide a transfer agent and registrar for all Securities registered disposition pursuant to the TZE such Registration Statement and any attorney, accountant or other agent retained by any such Holder or underwriter, to the extent reasonably requested and solely for conducting customary due diligence, all financial and other records, pertinent corporate documents and documents relating to the business of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement, provided that, it shall be a CUSIP number condition to such inspection and receipt of such information that the inspecting person (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company and (ii) agree to minimize the disruption to the Company’s business in connection with the foregoing; 4.8.15 Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and any applicable national securities exchange; 4.8.16 Timely provide to its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; 4.8.17 In the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or ceasing trading of any securities included in such Registration Statement for all sale in any jurisdiction, use every commercially reasonable effort to promptly obtain the withdrawal of such securitiesorder; 4.8.18 In connection with any underwritten offering, in each case not later than obtain one or more comfort letters, addressed to the underwriters, if any, dated the effective date of such registration; (l) Cause all such securities registered hereunder to be listed on each securities exchange on which the same 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 Registration Statement 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to under the underwriting agreementagreement for such offering, in customary form, scope and 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 signed by the Company’s independent certified registered public accountants (and if necessary, any other independent registered public accountants 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) in customary form and covering such matters of the type customarily covered by “cold comfort” comfort letters as such underwriters shall reasonably request; 4.8.19 In connection with any underwritten offering, provide legal opinions of the managing underwriter reasonably requestsCompany’s counsel, addressed to the underwriters, if any, dated the date of execution of the underwriting agreement and brought down to the closing pursuant to under the underwriting agreement;, with respect to the Registration Statement, each amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto as the underwriter shall reasonably request in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and (p) Cooperate 4.8.20 Obtain any required regulatory approval necessary for the Holders to sell their Registrable Securities in an offering, other than regulatory approvals required solely as a result of the nature of the Holder. As a condition to registering Registrable Securities, the Company may require each Holder as to which any registration is being effected to furnish the Company with any Holder or group of Holders such information regarding such Person and each underwriter, if any, participating in pertinent to the disposition disclosure requirements relating to the registration and the distribution 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and may from time to supply all information time reasonably requested by any such Person request in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretowriting.

Appears in 1 contract

Samples: Investors' Agreement (Cheniere Energy Inc)

Registration Procedures. In connection with the case obligations of each registration effected by the Company with respect to any Registration Statement pursuant to this Article IISections 2.1 and 2.2 hereof, the Company will 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 toshall: (a) Prepare and file with the required TZE SEC as soon as practicable each such Registration Statement, including all exhibits and financial statements required pursuant Statement (but in any event on or prior to the Securities Act date of filing thereof required under this Agreement) and cause each such Registration Statement to be filed therewithbecome effective and remain effective as provided herein; provided, and however, that before filing any such registration statement, Registration Statement or any Prospectus or any amendments or supplements theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference, or Prospectusincluding such documents filed under the Exchange Act that would be incorporated therein by reference), furnish the Company shall afford promptly to the Holder Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or group of Holders underwriters, if any, an opportunity to review copies of all such documents prepared proposed to be filed, which documents shall be subject filed a reasonable time prior to the review ofproposed filing thereof. The Company shall not file any Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the Holder managing underwriter or group underwriters, if any, shall reasonably object in writing unless failure to file any such amendment or supplement would involve a violation of Holders and their respective counsel;the Securities Act or other applicable law. (ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the TZE such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with time periods prescribed hereby; cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)prospectus supplement, and, and as so supplemented or amended, to be filed pursuant to Rule 424424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or such Prospectus as so supplemented. (c) Notify the Holders of Registrable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, (ivi) respond as promptly as reasonably possible to when a Prospectus or any comments received from the Commission prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any amendment theretopost-effective amendment, and when the same has become effective (v) comply including 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. (c) Furnish to the such notice a written statement that any Holder or group of Holders and each underwritermay, if anyupon request, obtain, without charge, as many one conformed copies as copy of such Holder or group of Holders or any 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 schedules and all exhibits (including those incorporated by referenceexhibits); (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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE such Registration Statement or of any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, initiation or written threatened initiation, threatening of any proceedings for such purposes; that purpose, (iiiii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable 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 the securities so registered Registration Statement or any of the Registrable Securities covered thereby for offering offer or sale in any jurisdiction or the initiationjurisdiction, or written threatened initiation, (B) the initiation of any proceeding for such purpose; and , (iiiv) at of the happening of any time when a Prospectus relating to event, the TZE existence of any condition or information becoming known that requires the making of any change in any Registration Statement is required to be delivered pursuant to or Prospectus so that, in the case of such Registration Statement, it will conform in all material respects with the requirements of the Securities Act of the occurrence of and it will not contain any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a 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, it will conform in all material respects with the 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 light of the circumstances under which they were made, not misleading, and following (vi) of the Company's reasonable determination that a post-effective amendment to such notification promptly prepare and furnish Registration Statement would be appropriate. (d) Use every reasonable effort to prevent the Holder issuance of any order suspending the effectiveness of the Registration Statement or group of Holders a reasonable number of copies any order preventing or suspending the use of a supplement to, Prospectus or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to suspending the purchasers qualification (or exemption from qualification) of such securities, such Prospectus 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 in light any of the circumstances under which they were made not misleading; (h) Prevent or Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any stop such order at the earliest possible moment. (e) If requested by the managing underwriter or other order suspending underwriters, if any, or the use Holders of any preliminary or final Prospectus; a majority of the Registrable Securities being sold in connection with an underwriting offering, (i) Promptly promptly incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriter and the Holder or group of underwriters, if any, or such Holders agree should reasonably request to be included therein relating to the plan of distribution comply with respect to such securitiesapplicable law, and (ii) make all required filings of such Prospectus prospectus supplement or such post-effective amendment as soon as reasonably practicable after being notified the Company has received notification of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;, and (iii) supplement or make amendments to such Registration Statement. (jf) Cooperate with Furnish to each Holder of Registrable Securities who so requests and to counsel for the Holder or group Holders of Holders Registrable Securities and the each managing underwriter, if any, to facilitate without charge, upon request, one conformed copy of 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 each post-effective amendment thereto, including financial statements and schedules, and of all such securities, in each case not later than the effective date of such registration;documents incorporated or deemed to be incorporated therein by reference and all exhibits (including exhibits incorporated by reference). (lg) Cause all such securities registered hereunder Deliver to be listed on each securities exchange on which the same securities issued by the Company are then listed; (m) In connection with any underwritten offering meeting the requirements Holder of Section 2.1(e)Registrable Securities, 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from their counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 without charge, as many copies of each Prospectus and each amendment or supplement thereto as such Persons may reasonably request; and, subject to the disposition last paragraph of this Section 3, the Company hereby consents to the use of such securities Prospectus and each amendment or supplement thereto by each of the 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 offering of Registrable Securities, to register or qualify, and cooperate with the Holders of such Registrable Securities, the managing underwriter or underwriters, if any, and their respective counsel in connection with any filings the registration or qualification (or exemption from such registration or qualification) of, such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as the 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 made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company filed pursuant to this Section 2.4(r3(h); keep each such registration or qualification (or exemption therefrom) shall agree effective during the period the Registration Statement relating to hold such information Registrable Securities is required to be kept effective pursuant to this Agreement and do any and all other acts or things necessary or advisable to enable the disposition in strict confidence and shall not make any disclosure or use any such information jurisdictions of the securities covered thereby; provided, however, that the Company determines will not be required to (A) qualify generally to do business in good faith any jurisdiction where it is not then so qualified, (B) take any action that would subject it to be confidential, and general service of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter process in any such underwritten offering and otherwise jurisdiction where it is not then so subject or (C) become subject to facilitate, cooperate with, and participate taxation in each proposed offering contemplated herein and customary selling efforts related theretoany jurisdiction where it is not then so subject.

Appears in 1 contract

Samples: Registration Rights Agreement (Packaged Ice Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare and file the applicable Registration Statement covering the Registrable Securities as required TZE by Section 2 hereof, and cause the Registration StatementStatement to become effective and remain effective as provided herein; provided, including all exhibits and financial statements required pursuant however, that not less than three (3) Business Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of the Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, or Prospectus, the Company shall (i) furnish to the Holder Holders or group of Holders their counsel, copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated by reference) will be subject to the review ofof the Holders or 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 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 (including any documents that would be incorporated or deemed to be incorporated therein by reference), to which the Holders of a majority of the Registrable Securities or their counsel shall reasonably object within three (3) Business Days after their receipt thereof. In the event of any such objection, the Holder Holders shall provide the Company with any requested revisions to such prospectus or group supplement within four (4) Business Days of Holders and their respective counsel;such objection. (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 PeriodPeriod 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, (ii) shall prepare and file with the Commission as promptly as practicable any such amendments to the Registration Statement or such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible practicable to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto and as promptly as reasonably practicable provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement, but not, without the prior written consent of the Holders, any comments that would result in the disclosure to the Holders of material and non-public information concerning the Company; and (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify Holders of Registrable Securities to the Holder or group of Holders and each underwriter, if any, without charge, be sold as many conformed copies promptly as such Holder or group of Holders reasonably practicable (A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments 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, to and after 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, effectiveness thereof: (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments request by the Commission or any request 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 or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiiv) at any time when a Prospectus relating to if the TZE financial statements included in the Registration Statement is required to be delivered pursuant to the Securities Act become ineligible for inclusion therein or of the occurrence of any event as a result 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 which the Prospectus included in such registration statementRegistration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in Section 3(c)(C)(i), 3(c)(C)(ii), 3(c)(C)(iii) or 3(c)(C)(iv) occur, the Company shall use its reasonable best efforts to respond to and correct the event. (d) Use its reasonable best efforts to avoid the issuance of, or, if issued, use 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, at the earliest practicable time. (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 reasonably practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment. (f) Furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the Commission. (g) Promptly deliver to each Holder, 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 reasonable best efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the 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. (j) Following the occurrence of any event contemplated by Section 3(c)(C)(iv), as promptly as possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 Cause all Registrable Securities registered pursuant relating to the TZE such 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 any United States securities exchange exchange, quotation system, market or over-the-counter bulletin board on which the same similar securities issued by the Company are then listed;. (l) 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(d). (m) In connection with If NASDR Rule 2710 requires any underwritten offering meeting broker-dealer to make a filing prior to executing a sale by a Holder, upon notification, 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 Company shall (i) such underwriting agreement contains reasonable and customary provisionsmake an Issuer Filing with the NASDR, Inc. Corporate Financing Department pursuant to proposed NASDR Rule 2710(b)(10)(A)(i), (ii) if participating respond within five Trading Days to any comments received from NASDR in such underwritingconnection therewith, a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating pay the filing fee required in such underwriting, the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering;connection therewith. (n) In connection Comply in all material respects with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders all applicable rules and the underwriter an opinion from counsel for the Company dated the date regulations of the closing pursuant Commission with respect to the underwriting agreement, in customary form, scope and 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;Registration Statement. (o) In connection with any underwritten offering meeting the requirements of Section 2.1(e) pursuant Request each selling Holder to furnish to the TZE 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, obtain for delivery and the Company may exclude from such registration the Registrable Securities of any such Holder who fails to furnish such information within a reasonable time prior to the Company and filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the managing underwriter, with copies Registration Statement refers to any Holder by name or group otherwise as the holder of Holdersany 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 “cold comfort” letter notice from the Company’s independent certified public accountants in customary form and covering such matters Company of the type customarily covered by “cold comfort” letters as the managing underwriter reasonably requests, dated the date occurrence of execution any event of the underwriting agreement kind described in Section 3(c)(C)(i), 3(c)(C)(ii), 3(c)(C)(iii), 3(c)(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 (as it may have been supplemented or amended) 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. 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 agrees and brought down acknowledges that any periods during which the Holder is required to discontinue the disposition of the Registrable Securities hereunder shall be subject to the closing pursuant to the underwriting agreement;provisions of Section 2 (c). (p) Cooperate with any Holder or group If (i) there is material non-public information regarding the Company which the Company’s Board of Holders and each underwriter, if any, participating 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 such securities 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 their respective counsel which the Company would be required to disclose under the Registration Statement, then the Company may (i) postpone or suspend filing or effectiveness of a registration statement or (ii) notify the Holders that the Registration Statement may not be used in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all sales of the Company’s officerssecurities, directors and employees and the independent public accountants who have certified the Company’s financial statements in each case, for a period not to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibilityexceed thirty (30) consecutive days, provided that any such Person gaining access to information regarding the Company pursuant to may not postpone or suspend its obligation under this Section 2.4(r3(p) shall agree to hold such information in strict confidence and shall not make any disclosure or use any such information that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless for more than sixty (i60) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate days in the customary aggregate during any 12 month period (each, a road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoBlackout Period”).

Appears in 1 contract

Samples: Investor Rights Agreement (Iridex Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company obligations pursuant to this Article IISection 3 hereof, the Company will shall use its all reasonable best efforts to effect such registration to permit the sale of securities such Registrable Securities in accordance with the intended method or methods of distribution thereof disposition thereof, and pursuant thereto the Company will 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 topracticable: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, a Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group Holders of Holders the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents prepared proposed to be filed, which documents shall be subject to the made available for prior review of, the Holder or group of by such Holders and their respective counselunderwriters; (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 Registrable Securities for the Effectiveness Period, (iib) prepare and file with the Commission as promptly as practicable SEC such amendments and post effective amendments to any additional registration statements Registration Statement, and such amendments or supplements to the Registration Statement or Prospectus, as may be reasonably requested by any Holder of Registrable Securities or any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or otherwise necessary in order to register for resale keep such Registration Statement effective until (i) the completion by the underwriters of the distribution pursuant to an Underwritten Offering or (ii) nine months after the effectiveness of any registration statement not involving an Underwritten Offering and (iii) file the Prospectus as supplemented pursuant to Rule 424 under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, Act; and (v) 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 TZE such Registration Statement during the applicable foregoing period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders sellers thereof as set forth in such Registration Statement or supplement to the TZE Registration Statement.Prospectus; (c) Furnish unless the Company objects in writing on reasonable grounds, if requested by the managing underwriter or underwriters or a Holder of Registrable Securities being sold in connection with an Underwritten Offering, immediately incorporate in a Prospectus supplement or post effective amendment such necessary information as the managing underwriters or the Holders of a majority in number of the Registrable Securities being sold reasonably request to have included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (d) at the request of any selling Holder or group of Holders Registrable Securities, furnish to such selling Holder of Registrable Securities and to each managing underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or any underwriter may reasonably request at least one signed copy 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); (de) Furnishdeliver to each selling Holder of Registrable Securities and the underwriters, if any, without charge, such number as many copies of Prospectuses, the Prospectus (including any each preliminary Prospectuses, prospectus) and other documents incident thereto, including any amendment of or supplement thereto as such Persons may reasonably request; the Company consents to the Prospectus, as use of such Prospectus (or preliminary prospectus) or any amendment or supplement thereto by each of the Holder or group selling Holders of Holders may from time to time reasonably request; (e) On or prior to the date on which the TZE Registration Statement is 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 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; (f) Notify the Holder or group of Holders Registrable Securities and the managing underwriterunderwriters, if any, in connection with the offering and (if requested) confirm such advice in writing and provide copies sale of the relevant documents, as soon as reasonably practicable after notice thereof is received Registrable Securities covered by the Company, such Prospectus (ior preliminary prospectus) when the TZE Registration Statement, or any amendment or supplement thereto; (f) make available to a representative of the Holders of a majority in number of the Registrable Securities, has been filed any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments accountant retained by the Commission sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any request such representative, underwriter, attorney or accountant in connection with the registration, with respect to each at such time or times as the Company shall reasonably determine; provided that any records, information or documents that are designated by the Commission Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or any other federal documents is required by court or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional informationadministrative order; (g) Promptly notify the Holder or group of Holders (i) otherwise use all best efforts to comply with all applicable rules and regulations of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 securitiesSEC, 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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 generally available to its security holders, as soon as reasonably practicable, an Holders earnings statement statements satisfying the provisions of Section 11(a) of the Securities Act; , no later than 30 days after the end of any 12 month period (r) In connection or 45 or 90 days if the end of such 12 month period coincides with any underwritten offering meeting the requirements end of Section 2.1(e) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by any Holderfiscal quarter or fiscal year, by the managing underwriter and by any attorneyrespectively, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, or such shorter period as the SEC shall require from time to time with respect to the filing by a reporting company of such documents on Forms 10-Q or 10-K, respectively) (1) commencing at the end of any month in which Registrable Securities are sold to underwriters in an Underwritten Offering or (2) if not sold to underwriters in such an offering, beginning with the first month commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; (h) cooperate and cause all assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter” that is required to be retained in accordance with the rules and regulations of the NASD); (i) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement) provide copies of such document to counsel to the selling Holders of Registrable Securities and to the managing underwriters, if any, make the Company’s officersrepresentatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling Holders or underwriters may reasonably request. (j) use its best efforts to register or qualify the Registrable Securities covered by said registration statement under the applicable securities or “blue sky” laws of such jurisdiction as any selling Holder may reasonably request; (k) furnish to each selling holder a “signed counterpart” of: (i) an opinion of counsel for the Company, directors dated the effective date of the Registration Statement; and employees and (ii) “comfort” letters signed by the Company’s independent public accountants who have certified examined and reported on the Company’s financial statements included in the registration statement, to make themselves available to discuss the business extent permitted by the standards of the Company American Institute of Certified Public Accountants, covering substantially the same matters with respect to the Registration Statement (and the prospectus included therein) and (in the case of the accountants’ “comfort” letters) with respect to supply all information reasonably requested by any such Person events subsequent to the date of the financial statements, as are customarily covered in connection with such disposition as shall be necessary opinions of issuer’s counsel and in accountants’ “comfort” letters delivered to enable them the underwriters in underwritten public offerings of securities, to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 extent that the Company determines in good faith is required to be confidential, and of which determination such Person is notified, unless (i) deliver or cause the release delivery of such information is required by law; (ii) such information is opinion or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality “comfort” letters to the Company with respect to such information and underwriters in an underwritten public offering of which the Holder is aware; or (iv) such information is independently developed by such Personsecurities; and (sl) In furnish to each selling Holder a copy of all documents filed with the Commission in connection with any underwritten such offering meeting the requirements of Section 2.1(e), cause the senior executive officers securities. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such seller and the distribution of such securities as the Company may from time to participate time reasonably request in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretowriting.

Appears in 1 contract

Samples: Registration Rights Agreement (Youbet Com Inc)

Registration Procedures. In the case of each connection with its registration effected by the Company obligations pursuant to this Article IISection 2 hereof, the Company will 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 toshall: (a) Prepare and file with the required TZE Registration StatementSEC, including all exhibits and financial statements required pursuant on or prior to the Securities Act to be filed therewithFiling Date, a Registration Statement or Registration Statements as prescribed by Section 2 hereof, and use commercially reasonable efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided that before filing such registration statement, any Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectus, the Company shall furnish to and afford the Holder or group Holders of Holders the Registrable Securities covered by such Registration Statement a reasonable opportunity to review copies of all such documents prepared proposed to be filedfiled (in each case, which documents where possible, at least three Business Days prior to such filing, or such later date as is reasonable under the circumstances). The Company shall not file any Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority in Amount of Securities shall reasonably object in writing within such period. The Company shall be subject deemed not to have used commercially reasonable efforts to keep a Registration Statement effective during the review ofEffectiveness Period if the Company voluntarily takes any action that would result in Selling Holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required by applicable law or stock exchange requirements or unless the Company complies with this Agreement, including without limitation the Holder or group provisions of Holders and their respective counsel;Section 4(i) hereof. (ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the TZE each Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with ; cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any prospectus supplement required Prospectus supplement (subject to the terms of this Agreement)by applicable law, and, and as so supplemented or amended, to be filed pursuant to Rule 424, 424 (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, similar provisions then in force) promulgated under the Securities Act; and (v) 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 TZE such Registration Statement during the applicable period as so amended or in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof such Prospectus as set forth in the TZE Registration Statementso supplemented. (c) Furnish to Notify the Holder or group of Selling Holders and each underwriterDesignated Counsel, if any, without chargepromptly (but in any event within two Business Days), as many conformed copies as such Holder or group of Holders (i) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment prospectus supplement or post-effective amendment theretohas been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, at the sole expense of the Company, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, all documents incorporated therein or deemed to be incorporated by reference and all exhibits (including those incorporated by referenceexhibits); (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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the TZE a Registration Statement or of any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, initiation of any proceedings for such purposes; that purpose, (iiiii) of the receipt by the Company happening of any notification with event, the existence of any condition or any information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in or amendments or supplements to such Registration Statement, Prospectus or documents so that, in the suspension case of the qualification of the securities so registered for offering or sale in Registration Statement, it will not contain any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state a 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, 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 misleadingmisleading and (iv) of the Company's determination that a post-effective amendment to a Registration Statement would be appropriate. (d) Use commercially reasonable efforts to prevent the issuance of 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 commercially reasonable efforts to obtain the withdrawal of any such order at the earliest possible moment, and following provide immediate notice to the Selling Holders of the withdrawal of any such notification order. (e) Furnish to each Selling Holder and Designated Counsel, if any, at the sole expense of the Company, one conformed copy of 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. (f) Deliver to each Selling Holder and Designated Counsel, if any, at the sole expense of the Company, as many copies of the Prospectus (including each form of preliminary prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to Sections 4A(a) and 4A(c) hereof, 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 dealers, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (g) Cause the Company's counsel to perform Blue Sky law investigations and file registrations and qualifications required to be filed in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities or offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Selling Holder reasonably requests, keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to he kept effective and do any and all other acts or things reasonably necessary or advisable under Blue Sky laws to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (iii) subject itself to taxation in any such jurisdiction where it is not then so subject. (h) Cooperate with the Selling Holders and their respective counsel to facilitate the timely preparation and delivery of certificates representing shares of Registrable Securities to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company; and enable such shares of Registrable Securities to be in such denominations and registered in such names as the Selling Holders may reasonably request. (i) Upon the occurrence of any event contemplated by Section 4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable prepare and furnish (subject to Section 4(a) hereof) file with the SEC, at the sole expense of the Company, a supplement or post-effective amendment to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary file any other required document so that, as thereafter delivered to the purchasers of such securitiesthe Registrable Securities being sold thereunder, any such Prospectus shall 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 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 Prior to the effective date of the first Registration Statement relating to the Registrable Securities, (i) provide the transfer agent for the Registrable Securities with certificates for 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 Registrable Securities 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 (ii) provide a CUSIP number for 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);Registrable Securities. (k) Provide During the Effectiveness Period, make available at reasonable times for inspection by one or more representatives of the Selling Holders and any attorney or accountant retained by any such Selling Holders (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 Company and the Inspectors as a transfer agent group, all financial and registrar for other records, pertinent corporate documents and instruments of the Company and its subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Company and its subsidiaries to supply all Securities registered information reasonably requested by any such Inspector in connection with such Registration Statement; provided that the Company shall have no obligation to provide any such information prior to the execution by the party receiving such information of a confidentiality agreement in a form reasonably acceptable to the Company. Records that the Company 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, (ii) the release of such Records is ordered pursuant to the TZE Registration Statement and a CUSIP number for all subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such securitiesinformation is, in each case not later the opinion of counsel for any Inspector, necessary or advisable in connection with any action, claim, suit or proceeding, directly involving or potentially involving such Inspector 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 effective date acts of such registration;Inspector; provided 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 to obtain a protective order (or waive the provisions of this paragraph (k)). Each Inspector shall take such actions as are reasonably necessary to protect the confidentiality of such information (if practicable) 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. (l) Cause all such securities registered hereunder Provide (i) the Holders of the Registrable Securities to be listed on included in such Registration Statement and Designated Counsel, if any, (ii) the sales or placement agent, if any, thereof, and (iii) one counsel for such agents, reasonable opportunity to participate in the preparation of such Registration Statement, each securities exchange on which prospectus included therein or filed with the same securities issued by the Company are then listed;SEC, and each amendment or supplement thereto. (m) In connection During the Effectiveness Period, comply 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 all applicable rules 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date regulations of the closing pursuant to the underwriting agreement, in customary form, scope SEC and 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 make generally available to its security holders, as soon as reasonably practicable, an earnings statement holders earning statements satisfying the provisions of Section 11(a) of the Securities Act; Act and Rule 158 thereunder (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such underwriter, all pertinent financial and other records, corporate documents and properties period is a fiscal year) commencing on the first day of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business first fiscal quarter of the Company and after the effective date of a Registration Statement, which statements shall cover said 12-month periods. (n) Use commercially reasonable efforts to supply all information reasonably requested cause the Registrable Securities covered by any Shelf Registration Statement to be registered with or approved by such Person in connection with such disposition other governmental agencies or authorities as shall may be reasonably necessary to enable them the Selling Holder or Holders thereof to exercise their due diligence responsibilityconsummate the disposition of such Registrable Securities, provided that any except as may be required solely as a consequence of the nature of such Person gaining access to information regarding Selling Holder's business, in which case the Company pursuant to this Section 2.4(rwill cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals. (o) shall agree to hold such information If requested by Designated Counsel, if any, or the Holders of a majority in strict confidence and shall not make any disclosure or use any such information that the Company determines in good faith to be confidentialAmount of Registrable Securities, and of which determination such Person is notified, unless (i) the release of promptly incorporate in a prospectus supplement or post-effective amendment such information as the Designated Counsel, if any, or such Holders reasonably determine is required by law; necessary to be included therein, (ii) make all required filings of such information is prospectus supplement or becomes publicly known other than through a breach such post-effective amendment as soon as reasonably practicable after the Company has received notification of this the matters to be incorporated in such prospectus supplement or any other agreement; post-effective amendment and (iii) such information is supplement or becomes available make amendments to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the Holder is aware; or (iv) such information is independently developed by such Person; andRegistration Statement. (sp) In connection with any underwritten offering meeting Use commercially reasonable efforts to take all other steps necessary or advisable to effect the requirements of Section 2.1(e), cause the senior executive officers registration of the Company to participate in the customary “road show” presentations that may be reasonably requested Registrable Securities covered by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering a Registration Statement contemplated herein and customary selling efforts related theretohereby.

Appears in 1 contract

Samples: Registration Rights Agreement (Cimarex Energy Co)

Registration Procedures. In If and whenever the case of each registration effected Company is required by the Company pursuant provisions hereof to this Article IIeffect the registration of any Registrable Securities under the Securities Act, the Company will 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 will, 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 topossible: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant in any event not less than five Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of each Registration Statement or any amendments related Prospectus or supplements theretoany amendment or supplement thereto (excluding any document that would be incorporated or deemed incorporated therein by reference), or Prospectus, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the Holder reasonable opinion of respective counsel to conduct a reasonable investigation within the meaning of the Securities Act; the Company shall not file the Registration Statement or group any such Prospectus or any amendments or supplements thereto to which the Holders of Holders a majority of the Registrable Securities shall reasonably and their respective counselin good faith object; (ib) Prepare prepare and file with the Commission the Registration Statement with respect to such Registrable Securities, respond as promptly as possible to any comments received from the Commission, and use its best efforts to cause the Registration Statement to become and remain effective for the Effectiveness Period with respect thereto as soon as reasonably practicable, and promptly provide to the Purchaser copies of all filings and Commission letters of comment relating thereto; (c) prepare and file with the Commission such amendments, including post-effective amendments, amendments and supplements to the TZE Registration Statement and the Prospectus used in connection therewith as may be necessary to keep comply with the TZE provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement continuously and to keep such Registration Statement effective as to until the Registrable Securities for expiration of the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) ; respond as promptly as reasonably possible possible, and in any event within 15 Trading Days to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and (v) as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to any amendment; and 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. (c) 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 Holders or any underwriter may reasonably request of the TZE Registration Statement and any amendment as so amended or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference)in such Prospectus as so supplemented; (d) Furnish, without charge, promptly furnish to the Purchaser such number of Prospectuses, copies of the Registration Statement and the Prospectus included therein (including each preliminary Prospectus) and each amendment or supplement thereto as the Purchaser reasonably may request to facilitate the public sale or disposition of the Registrable Securities covered by the Registration Statement; 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 preliminary Prospectuses, and other documents incident amendment or supplement thereto, including except after the giving of any amendment of or supplement notice pursuant to the Prospectus, as the Holder or group of Holders may from time to time reasonably requestSection 3(g); (e) On use its best efforts to register or prior to qualify the date on which Purchaser's Registrable Securities covered by the TZE Registration Statement is declared effective, to the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to under the securities or "blue sky sky" laws of each jurisdiction such jurisdictions within the United States as shall be the Purchaser may reasonably requested request among those jurisdictions in which registration or qualification is necessary to permit resale of the Registrable Securities by the Holder or group of Holders; Purchaser, including without limitation Massachusetts, New York and California, provided, however, that the Company shall not for any such purpose be required in connection therewith or to qualify generally to transact business as a condition thereto to qualify to do business foreign corporation in any jurisdiction where it is not so qualified or to file a general consent to general service of process in any such states or jurisdictions where it is not then so subjectjurisdiction; (f) Notify list the Holder or group Registrable Securities covered by the Registration Statement with any securities exchange on which the Common Stock of Holders and the managing underwriterCompany is then listed; (g) immediately notify the Purchaser (and, if anyin the case of (i)(A) below, not less than two Trading Days prior to such filing) and (if requestedrequested by any such Person) confirm such advice notice in writing and provide copies of promptly following the relevant documents, as soon as reasonably practicable after notice thereof day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is received by the Company, proposed to be filed; (iB) when the TZE Commission notifies the Company whether there will be a "review" of the Registration Statement, 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 to each of the Holders); and (C) with respect to the Registration Statement or any amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) of any written comments request by the Commission or any request 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; (iii) of the issuance by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under then existing; (h) use its commercially reasonable efforts to avoid the issuance of, or, if issued, 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; (i) 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 pursuant to the Registration Statement, which they were made, not misleadingcertificates shall be free of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request; (j) upon the occurrence of any event contemplated by Section 3(g)(v), as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder Registration Statement or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; (hk) 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 comply with all applicable rules 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 regulations 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;Commission; and (l) Cause all such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter Purchaser and by any attorney, accountant or other agent retained by any such Holder or any such underwriterthe Purchaser, all pertinent publicly available, non-confidential financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s 's officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all publicly available, non-confidential information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibilitythe attorney, provided that any such Person gaining access to information regarding the Company pursuant to this Section 2.4(r) shall agree to hold such information in strict confidence and shall not make any disclosure accountant or use any such information that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 agent of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoPurchaser.

Appears in 1 contract

Samples: Registration Rights Agreement (Secured Services Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders and their 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 Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary Statements in order to register for resale 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 as may be necessary to keep the Registration Statements continuously effective as to the applicable Registrable Securities for its Effectiveness Period; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a each Registration Statement or any amendment thereto, ; and (viv) 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 TZE each Registration Statement during the applicable period in accordance Statement; (subject to the terms of this Agreementb) with the intended methods of disposition by Notify the Holders thereof as set forth in the TZE Registration Statement. promptly as reasonably possible (ci)(A) 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 Holders when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed 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 reasonably requested by the Holder or group of Holdersfiled; 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (iB) when the TZE 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 each Registration Statement or any amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in such registration statementRegistration 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 such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; (c) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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; (d) Prior to any public offering of Registrable Securities, register or qualify such Registrable Securities for offer and sale under the securities or Blue Sky laws of all jurisdictions within the United States as any Holder may 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 the Registration Statement(s); (e) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement(s), which certificates shall be free, to the extent permitted by the Subscription Agreement or applicable law, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request; (f) Upon the occurrence of any event contemplated by Section 5(b)(v), as promptly as reasonably possible, prepare and furnish a supplement or amendment, including a post-effective amendment, to the Holder affected Registration Statements or group of Holders a reasonable number of copies of a supplement toto the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or an amendment of, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, such no Registration Statement nor any Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; (hg) Prevent or obtain As expeditiously as possible, furnish to each selling Holder of Registrable Securities such reasonable numbers of copies of the withdrawal Registration Statement, each amendment and supplement thereto, Prospectus, and such other documents as the selling Holder of any stop Registrable Securities may reasonably request in order to facilitate the public sale or other order suspending disposition of the use of any preliminary or final ProspectusRegistrable Securities; (ih) 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 Use its reasonable best efforts 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 cause all such securities, in each case not later than the effective date of such registration; (l) Cause all such securities registered hereunder Registrable Securities to be listed on each securities exchange exchange, if applicable, on which the same similar securities issued by the Company are then listed; (mi) In connection with the event of any underwritten offering meeting the requirements of Section 2.1(e)public offering, 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 under an underwriting agreement in such underwriting, customary form with the indemnification and contribution obligations managing underwriter of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (nj) In connection with the event of any underwritten offering meeting the requirements of Section 2.1(e)public offering, obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and substance, which opinion shall be reasonably satisfactory to such Holder or group of Holders and to if requested by 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” 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 requestscomfort letters, dated the date of execution of the underwriting agreement and brought down addressed to the closing pursuant to the underwriting agreementselling Holders of Registrable Securities; (pk) Cooperate with any Holder 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 being sold or group of Holders and each underwriterthe underwriters, if any, participating reasonably, request in order to expedite or facilitate the disposition of such securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory AuthorityRegistrable Securities (including, Inc.;without limitation, effecting a stock split or a combination of shares); and, (ql) Make available to its security holders, take such other actions as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information shall be reasonably requested by any such Person in connection Holder consistent with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach terms of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoAgreement.

Appears in 1 contract

Samples: Registration Rights Agreement (China Agricorp, Inc)

Registration Procedures. In connection with the case registration of each registration effected by the Company any Registrable Securities pursuant to this Article IISection 2 hereof, the Company will use its reasonable best efforts to shall effect such registration registrations to permit the sale of securities such Reg- istrable Securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable disposition thereof, and will keep pursuant thereto the Holders advised on a reasonably current basis as to the initiation Company shall: (i) Promptly upon request from any Holder of each registration and as to the completion thereof. At its expenseRegistrable 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 SEC on or prior to the Filing Date, a Registration Statement as prescribed by Section 2 hereof, and to use its reasonable best efforts to: (a) Prepare the required TZE to cause such Registration StatementStatement to become effective and remain effective as provided herein, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewithprovided that, and before filing such registration statement, any Registration Statement or Prospectus or any amendments or supplements thereto, or Prospectusthe Company shall upon written request from any registered Holder of Registrable Securities (which 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 and afford such Holder or group of Holders a reasonable opportunity to review copies of all such documents prepared (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed. Before filing any Registration Statement or Prospectus or any amendments or supplements thereto the Company will consider any reasonable objections of the Holders of a majority in Registrable Securities covered by such Registration Statement or their counsel, which documents shall be subject to the review of, the Holder or group of Holders and their respective counsel;if 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 TZE Registration Statement and the Prospectus used in connection therewith case may be, as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period (other than during a Blackout Period, (ii) prepare and file with ); cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)required by applicable law, and, and as so supplemented or amended, to be filed pursuant to Rule 424, 424 (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, similar provisions then in force) under the Securities Act; and (v) 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 TZE such Registration Statement during the applicable period as so amended or 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. (c) 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 Holders or any 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 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state 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, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretosupplemented.

Appears in 1 contract

Samples: Registration Rights Agreement (Grey Global Group Inc)

Registration Procedures. In the case of each registration effected by the Company pursuant to this Article II, the Company will use its reasonable best efforts to effect such registration to permit the sale of securities in accordance connection 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 ASSAC’s obligations with respect to the initiation registration of each registration and as to the completion thereof. At its expenseRegistrable Securities hereunder, the Company will use its reasonable best efforts toASSAC shall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of the Registration Statement and the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, (i) furnish to the Holder or group of Holders ASSAC Shareholder copies of all such documents prepared proposed to be filed, which documents shall will be subject to the review ofof the ASSAC Shareholder, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the Holder reasonable opinion of counsel to the ASSAC Shareholder to conduct a reasonable investigation within the meaning of the Securities Act. (b) Not file a Registration Statement or group any such Prospectus or any amendments or supplements thereto to which the ASSAC Shareholder shall reasonably object, provided that, ASSAC is notified of Holders and their respective counsel;such objection in writing no later than four Trading Days after the ASSAC Shareholder has been so furnished copies of the Registration Statement or any related Prospectus or amendment or supplement thereto. The ASSAC Shareholder agrees to furnish to ASSAC a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Shareholder Questionnaire”) not less than two Trading Days prior to the Filing Date or by the end of the fourth Trading Day following the date on which the ASSAC Shareholder receives draft materials in accordance with this Section. (c) (i) Prepare prepare and file with the Commission SEC such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and to prepare and file with the Commission as promptly as practicable any SEC such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any amend or supplement the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission SEC with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the ASSAC Shareholder true and complete copies of all correspondence from and to the SEC relating to a Registration; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (cd) Furnish Notify the ASSAC Shareholder (which notice shall, pursuant to clauses (iii) through (vi) of this Section 3(d), shall also be accompanied by an instruction to suspend the Holder or group use of Holders the Prospectus until the requisite changes have been made) as promptly as possible (and, in the case of (i)(A) below, not less than one Trading Day prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed 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 reasonably requested by the Holder or group of Holdersfiled; 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (iB) when the TZE SEC notifies ASSAC whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on such Registration Statement, ; and (C) with respect to a Registration Statement or any amendment or supplement theretopost-effective amendment, has been filed or becomes effective and when the applicable Prospectus same has been filedbecome effective; and (ii) of any written comments by the Commission or any request by the Commission SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the SEC or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) the occurrence or existence of any pending corporate development with respect to ASSAC (including its subsidiaries) that ASSAC believes may be material and that, 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 representations and warranties of ASSAC contained in any agreement contemplated hereby ceases to be true and correct in all material respects; (e) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a 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. (f) If requested by the ASSAC Shareholder, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as 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 ASSAC has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment. (g) Furnish to the ASSAC Shareholder, without charge, at least one conformed copy of 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by the ASSAC Shareholder (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number of such documents with the SEC. (h) Promptly deliver to the ASSAC 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 assigns, hereby consents to the use of such Prospectus and each amendment or supplement thereto by the 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). (j) 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 resale of Registrable Securities by the ASSAC Shareholder, use its best efforts to register or qualify or cooperate with the ASSAC Shareholder in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by the ASSAC Shareholder under the securities or Blue Sky laws of such jurisdictions within the United States as the ASSAC Shareholder reasonably requests in writing, to keep each 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 each Registration Statement; provided, that ASSAC shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject ASSAC to any material tax in any such jurisdiction where it is not then so subject or (iii) file a general consent to service of process in any such jurisdiction. (l) If requested by the ASSAC Shareholder, cooperate with the ASSAC Shareholder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Securities Act, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as the ASSAC Shareholder may request. (m) Upon the occurrence of any event contemplated by this Section 3, as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made made, not misleading; . If ASSAC notifies the ASSAC Shareholder in accordance with clauses (hiii) Prevent or obtain the withdrawal through (v) of any stop order or other order suspending Section 3(d) above to suspend the use of any preliminary or final 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. (in) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as Comply with all applicable rules and regulations of the managing underwriter and the Holder or group of Holders agree should be included therein SEC. (o) Use its best efforts to cause all Registrable Securities relating to the plan of distribution with respect Registration Statement, 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 continued to be incorporated in such Prospectus supplement quoted or post-effective amendment; (j) Cooperate with the Holder listed on a securities exchange, quotation system or group of Holders and the managing underwritermarket, 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 such securities registered hereunder to be listed on each securities exchange on which the same similar securities issued by the Company ASSAC 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder listed or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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;traded. (p) Cooperate with any Holder or group ASSAC may require the ASSAC Shareholder to furnish to ASSAC a statement as to the number of Holders and each underwriterOrdinary Shares beneficially owned by the ASSAC Shareholder and, if anyrequired by the SEC, participating in the disposition persons or entities thereof that have voting and dispositive control over the shares. During any periods that ASSAC is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities solely because the ASSAC Shareholder fails to furnish such information within five Trading Days of ASSAC’s request, any liquidated damages that are accruing at such time shall be tolled and any Event that may otherwise occur solely because 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as delay shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of suspended until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoASSAC.

Appears in 1 contract

Samples: Registration Rights Agreement (Asia Special Situation Acquisition Corp)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than three Trading Days prior to the Securities Act to be filed therewith, and before filing such registration statement, of a Registration Statement or any amendments related Prospectus or supplements any amendment or supplement thereto, or Prospectus, furnish via email to those Investors who have supplied the Holder or group of Holders Company with email addresses copies of all such documents prepared proposed to be filed, which documents shall (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review of, of such Investors. The Company shall reflect in each such document when so filed with the Holder or group SEC such comments regarding the Investors and the plan of Holders distribution as the Investors may reasonably and their respective counsel;promptly propose no later than two Trading Days after the Investors have been so furnished with copies of such documents 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 TZE each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any SEC such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within 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 a the Registration Statement or any amendment thereto, ; and (viv) 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 Investors thereof as set forth in the TZE Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish to Notify the Holder or group Investors as promptly as reasonably possible, and (if requested by the Investors confirm such notice in writing no later than two Trading Days thereafter, of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group any of Holders the following events: (i) the SEC notifies the Company whether there will be a “review” of any Registration Statement; (ii) the SEC comments in writing on any Registration Statement; (iii) any Registration Statement or any 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 declared effective, to ; (iv) the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the securities SEC or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder any other Federal 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or state governmental authority requests any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of to any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for requests additional information; information related thereto; (gv) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of SEC issues any stop order suspending the effectiveness of the TZE any Registration Statement or initiates any order by Proceedings for that purpose; (vi) the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use Company receives notice of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the securities so registered any Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threat of any proceeding Proceeding for such purpose; and or (iiivii) at the financial statements included in any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of become ineligible for inclusion therein or any event as a result of which the Registration Statement or Prospectus included in such registration statement, as then in effect, includes an or other document contains any untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. (d) Use its commercially reasonable efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of 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, as soon as possible. (e) If requested by an Investor, provide such Investor without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and following all exhibits to the extent requested by such notification Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the SEC. (f) Promptly deliver to each Investor, 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. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Investors in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto 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 furnish 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 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 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 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 Investor requests in writing, to keep each such registration or qualification (or exemption therefrom) effective for so long as required, but not to exceed the duration of 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 obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. (i) Cooperate with the Investors to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the Holder or group extent permitted by this Agreement and under law, of Holders a reasonable number all restrictive legends, and to enable such certificates to be in such denominations and registered in such names as any such Investors may reasonably request. (j) Upon the occurrence of copies of any event described in Section 6.2(c)(vii), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 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 Cooperate with any reasonable due diligence investigation undertaken by the Investors in connection with the sale of Registrable Securities, including, without limitation, by making available documents and registrar for all Securities registered pursuant information; provided that the Company will not deliver or make available to the TZE Registration Statement any Investor material, nonpublic information unless such Investor requests in advance in writing to receive material, nonpublic information and a CUSIP number for all agrees to keep such securities, in each case not later than the effective date of such registration;information confidential. (l) Cause Comply with all such securities registered hereunder rules and regulations of the SEC applicable to be listed on each securities exchange on which the same securities issued by registration of the Company are then listed;Securities. (m) In connection 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 underwritten offering meeting particular Investor or to make any Event Payments set forth in Section 6.1(c) to such Investor that such Investor furnish to the requirements Company the information specified in Exhibits E-1, E-2 and E-3 hereto and such other information regarding itself, the Registrable Securities and other shares of Section 2.1(e), enter into an underwriting agreement in form 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 F hereto) as shall be reasonably necessary required to effect the offer and sale registration of such securities, provided that (i) Registrable Securities and shall complete and execute such underwriting agreement contains reasonable and customary provisions, (ii) if participating documents in connection with such underwriting, a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwriting, registration as the indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering;Company may reasonably request. (n) In connection The Company shall comply with any underwritten offering meeting all applicable rules and regulations of the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders SEC under the Securities Act and the underwriter an opinion from counsel for Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the SEC pursuant to Rule 424 under the Securities Act, promptly inform the Investors in writing if, at any time during the Effectiveness Period, the Company dated does not satisfy the date of the closing pursuant to the underwriting agreement, conditions specified in customary form, scope and substance, which opinion shall be reasonably satisfactory to such Holder or group of Holders and to the underwriterRule 172 and, as a result thereof, the case may be, and their respective counsel; (o) In connection with any underwritten offering meeting the requirements of Section 2.1(e) pursuant Investors are required to the TZE Registration Statement, obtain for delivery to the Company and the managing underwriter, with copies to any Holder or group of Holders, make available 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 Prospectus in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.; (q) Make available to its security holders, disposition of Registrable Securities and take such other actions as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by necessary to facilitate the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoregistration of the Registrable Securities hereunder.

Appears in 1 contract

Samples: Securities Purchase Agreement (Stratus Media Group, Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will use its reasonable best efforts shall: 4. Prepare and file with the Commission within the time period set forth in Section 2 a Registration Statement on Form S-1 or Form SB-2 or another appropriate form permitting registration of Registrable Securities for issuance to effect such registration to permit the sale of securities Holders and the resale thereof in accordance with the intended method or methods of distribution thereof as expeditiously specified by the Holders, and use its best efforts to cause the Registration Statement to become effective and remain effective as reasonably practicable and will keep provided herein; provided, however that, subject only to the Holders advised on a reasonably current basis as providing to the initiation of each registration and as Company in writing information, requested in writing by the Company, relating to the completion thereof. At its expenseHolders' proposed method of distribution of Registrable Securities and such other information required by law, not less than ten (10) days prior to the filing of the Registration Statement or any related Prospectus or any amendment (pre or post effective) or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company will use its reasonable best efforts to: shall (ai) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders Holders, their Counsel and any managing underwriters, copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act. The Holders shall have five days after receipt of the Registration Statement or any related Prospectus or any amendment or supplement thereto to comment on or object to the filing of such documents. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto without including any comments reasonably requested by the Holders and shall not file any such documents to which the Holders of a majority of the Registrable Securities, their Counsel, or any managing underwriters, shall object; provided, however, that the counting of days for determining whether the Company has complied with the Filing Date and Effectiveness Date requirements for purposes of this Agreement shall not include any days during the period commencing with such objection and ending when the Person objecting subsequently consents to the filing of such documents. On the date of effectiveness of any Registration Statement, the Holder or group Company shall furnish an opinion, dated as of such date, from counsel representing the Company addressed to the Holders of the Registrable Securities and their respective counsel;in form, scope and substance as is customarily given in an underwritten public offering. The Company shall also use its best efforts to cause to be furnished on the date of effectiveness of any Registration Statement, a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Holders of the Registrable Securities. (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 Registrable Securities for the Effectiveness Period, applicable time period; (ii) prepare and file with cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, 424 (ivor any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible practicable to any comments received from the Commission with respect to a the Registration Statement or any amendment thereto, ; and (viv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition registration 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 StatementStatement as so amended or in such Prospectus as so supplemented. 6. Notify the Holders of Registrable Securities to be sold, their Counsel and any managing underwriters immediately (cand, in the case of (i)(A) Furnish below, not less than three 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 Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed 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 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; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (B) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) if at any time the Registration Statement becomes stale and is no longer effective; (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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiivi) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result 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 which the Prospectus included in such registration statementRegistration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. 7. Use its reasonable best efforts to avoid the issuance of, or, if issued, 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. 8. If requested by any managing underwriter or the Holders of a majority of the Registrable Securities 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 such managing underwriters and such Holders reasonably 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; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) unless in the opinion of counsel for the Company such action is required by applicable law. 9. Furnish to each Holder, their Counsel and any managing underwriters, without charge, at least one complete 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 following such notification promptly prepare and furnish 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. 10. Promptly deliver to each Holder, their Counsel, and any underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus forming part of the effective Registration Statement) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby agrees to respond in writing to a written request from the Purchasers with respect to the effectiveness of such Prospectus. 11. Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders, any underwriters and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder or group 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; 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 tax in any such jurisdiction where it is not then so subject. 12. Cooperate with the Holders a reasonable number and any managing underwriters to facilitate the timely preparation and delivery of copies certificates representing Registrable Securities to be sold, which certificates shall be free of all restrictive legends, except as required by applicable law, and to enable such Registrable Securities to be in such denominations and registered in such names as any such managing underwriters or Holders may request at least three (3) Business Days prior to any sale of Registrable Securities. 13. Upon the occurrence of any event contemplated by Section 3(c)(vi), as promptly as practicable, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 14. Use its reasonable best efforts to cause all Registrable Securities 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 Registration Statement to be incorporated in such Prospectus supplement listed or postquoted on the Nasdaq National Market, the Nasdaq SmallCap Market and any other securities exchange, market or over-effective amendment; (j) Cooperate with the Holder or group of Holders and the managing underwriterthe-counter bulletin board, 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 such securities registered hereunder to be listed on each securities exchange on which the same similar securities issued by the Company are then listed;listed or quoted to the extent required by the rules of such exchange, market or other quotation system. (m) In 15. If the Registrable Securities are included in a Registration Statement filed in connection with any underwritten offering meeting an Underwritten Offering, the requirements of Section 2.1(e)Company shall, enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of such securities, provided that (i) make such underwriting agreement contains reasonable representations and customary provisions, (ii) if participating warranties to such Holders as it agrees to make to the underwriters 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 indemnification and contribution obligations of such Holder shall be several and not jointUnderwritten Public Offerings, and (iv) confirm the same if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by lawwhen requested; (ii) such information is or becomes publicly known other enter into an indemnification agreement which shall contain indemnification provisions and procedures no less favorable to the selling Holders , than through a breach of this or any other agreement; those set forth in Section 6 and (iii) deliver such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information documents and of which the 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 participate in the customary “road show” presentations that certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold, their Counsel and any managing underwriter in any such underwritten offering underwriters to evidence the continued validity of the representations and otherwise warranties made pursuant to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoclause 3(1)(i) .

Appears in 1 contract

Samples: Registration Rights Agreement (Surgilight Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall, (i) furnish to the Holders and their Special Counsel copies of all such documents proposed to be filed therewith(including documents incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and their Special Counsel, and before filing (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such registration statementinquiries as shall be necessary, in the reasonable opinion of respective counsel 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, or Prospectus, furnish thereto to which the Holder or group Holders of Holders copies a majority of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group of Holders Registrable Securities and their respective counsel;Special Counsel shall reasonably object in good faith. (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, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)supplement, and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within fifteen Trading Days, to any comments received from the Commission with respect to a the Registration Statement or any amendment theretothereto 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 (viv) 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 StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish Notify the Holders of Registrable Securities to be sold and their Special Counsel as promptly as reasonably possible (and, in the Holder or group case of Holders (i)(A) below, not less than three Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of with respect to the relevant documentsRegistration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementthe Registration Statement ineligible for inclusion therein or 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 then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading. (d) Use its best efforts to avoid the issuance of, or, if issued, 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) Furnish to each Holder and 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 following such notification promptly prepare and furnish all exhibits to the Holder extent requested by such Person (including those previously furnished or group incorporated by reference) promptly after the filing of Holders a reasonable number 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. (f) Promptly deliver to each Holder and 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. 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 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. (g) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and 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, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or subject the Company to any material tax in any such jurisdiction where it is not then so subject. (h) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall -6- be free, to the extent permitted by 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 Holders may request. (i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, prepare a supplement toor amendment, including a post-effective amendment, to the Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to delivered, neither the purchasers of such securities, Registration Statement nor such Prospectus shall not 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 therein, in 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 Comply with all applicable rules and regulations of 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);Commission. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require, at any time prior 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant third Trading Day prior to the underwriting agreementFiling Date, in customary form, scope and substance, which opinion shall be reasonably satisfactory each selling Holder 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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, requested by the managing underwriter and by any attorneyCommission, accountant or other agent retained by any such Holder or any such underwriterthe controlling person thereof, all pertinent financial and other records, corporate documents and properties within three Trading Days of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto's request.

Appears in 1 contract

Samples: Registration Rights Agreement (Peregrine Pharmaceuticals Inc)

Registration Procedures. In connection with the case of each Company’s registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of each Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statementthe Company shall, or any amendments or supplements thereto, or Prospectus, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 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 shall reasonably and in good faith object, provided, the Holder or group Company is notified of such objection in writing no later than 3 Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible possible, and in any event within 10 Trading Days, to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 Holder or group 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 (which notice shall, pursuant to clauses (ii) through (vi) hereof, shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a “review” of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 the Registration Statement or Prospectus; provided that any 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 Holders make no acknowledgement that any such information is material, non-public information. (e) Promptly deliver to each Holder, 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. 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. (f) Use commercially reasonable efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (g) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (h) Upon the occurrence of any event contemplated by this Section 3, as promptly prepare and furnish as reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Holder or group Company and its stockholders of Holders a reasonable number the premature disclosure of copies of such event, prepare a supplement toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made 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. (hi) Prevent or Comply with all applicable rules and regulations of the Commission. (j) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) 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 Registrable Securities 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 jurisdiction, at the requirements of Section 2.1(e);earliest practicable moment. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require, at any time prior 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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant third Trading Day prior to the underwriting agreementFiling Date, in customary form, scope and substance, which opinion shall be reasonably satisfactory each Holder 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 furnish 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 statement 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 number of shares of Common Stock beneficially owned by such Holder or group of Holders and each underwriterand, 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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, requested by the managing underwriter and by any attorneyCommission, accountant or other agent retained by any such Holder or any such underwriterthe controlling person thereof, all pertinent financial and other records, corporate documents and properties of the Company, and cause all within three Trading days of the Company’s officers, directors and employees and request. During any periods that the independent public accountants who have certified 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 financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by request, any liquidated damages that are accruing at such Person in connection with such disposition as time shall be necessary to enable them to exercise their due diligence responsibilitytolled and any Event that may otherwise occur solely because of such delay shall be suspended, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Paincare Holdings Inc)

Registration Procedures. In connection with the case obligations of each registration effected by the Company with respect to any Registration Statement pursuant to this Article IISection 2.1 hereof, the Company will 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 toshall: (a) Prepare and file with the required TZE SEC as soon as practicable each such Registration Statement, including all exhibits and financial statements required pursuant Statement (but in any event on or prior to the Securities Act date of filing thereof required under this Agreement) and cause each such Registration Statement to be filed therewithbecome effective and remain effective as provided herein; provided, and however, that before filing any such registration statement, Registration Statement or any Prospectus or any amendments or supplements theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference, or Prospectusincluding such documents filed under the Exchange Act that would be incorporated therein by reference), furnish the Company shall afford promptly to the Holder Holders of the Registerable Securities covered by such Registration Statement, their counsel and the managing underwriter or group of Holders underwriters, if any, an opportunity to review copies of all such documents prepared proposed to be filed, which documents shall be subject filed a reasonable time prior to the review ofproposed filing thereof. The Company shall not file any Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority of the Registerable Securities covered by such Registration Statement, their counsel, or the Holder managing underwriter or group underwriters, if any, shall reasonably object in writing, unless failure to file any such amendment or supplement would involve a violation of Holders and their respective counsel;the Securities Act or other applicable law. (ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the TZE such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE such Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with time periods prescribed hereby; cause the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement)prospectus supplement, and, and as so supplemented or amended, to be filed pursuant to Rule 424424 (or any similar provision then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or such Prospectus as so supplemented. (c) Notify the Holders of Registerable Securities, their counsel and the managing underwriter or underwriters, if any, promptly (but in any event within two (2) Business Days), and confirm such notice in writing, (ivi) respond as promptly as reasonably possible to when a Prospectus or any comments received from the Commission prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has (d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registerable 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 possible moment. (e) If requested by the managing underwriter or underwriters, if any, or the Holders of a majority of the Registerable Securities being sold in connection with an underwritten offering, (i) promptly incorporate in a prospectus supplement or post-effective amendment theretosuch information as the managing underwriter or underwriters, if any, or such Holders reasonably request to be included therein to comply with applicable law, (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, and (viii) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect supplement or make amendments 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 such Registration Statement. (cf) Furnish to each Holder of Registerable Securities who so requests and to counsel for the Holders of Registerable Securities and each managing (g) Deliver to each Holder or group of Holders Registerable Securities, their counsel and each underwriter, if any, without charge, as many conformed copies of each Prospectus and each amendment or supplement thereto as such Holder or group of Holders or any underwriter Persons may reasonably request request; 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 TZE Registration Statement Holders of Registerable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registerable Securities covered by such Prospectus and any amendment or post-effective amendment supplement thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);. (dh) FurnishPrior to any offering of Registerable Securities, without chargeto register or qualify, and cooperate with the Holders of such Registerable Securities, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of, such number Registerable Securities for offer and sale under the securities or Blue Sky laws of Prospectusessuch jurisdictions within the United States as the managing underwriter or underwriters reasonably request in writing, including any preliminary Prospectusesor, and other documents incident thereto, including any amendment in the event of or supplement to the Prospectusa non-underwritten offering, as the Holder Holders of a majority of such Registerable Securities may request; provided, however, that where Registerable 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); and keep each such registration or group of Holders may from time to time reasonably request; qualification (eor exemption therefrom) On or prior to effective during the date on which period the TZE Registration Statement relating to such Registerable Securities is declared effective, required to be kept effective pursuant to this Agreement and do any and all other acts or things necessary or advisable to enable the extent required by applicable law, register and qualify disposition in such jurisdictions of the securities covered by such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holdersthereby; provided, however, that the Company shall will not be required in connection therewith or as a condition thereto to (A) qualify generally to do business or in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to file a general consent to service of process in any such states or jurisdictions jurisdiction where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (iiC) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements become subject to the TZE Registration Statement or the Prospectus or for additional information; (g) 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale taxation in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) at any time when a Prospectus relating to the TZE Registration Statement where it is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result of which the Prospectus included in such registration statement, as not then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were 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;subject. (i) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as Cooperate with the Holders of Registerable Securities and 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 underwriterunderwriters, if any, to facilitate the timely preparation and delivery of certificates representing securities Registerable Securities to be sold that are sold, which certificates shall not bear any restrictive legends whatsoever and shall be in a form eligible for deposit with The Depository Trust Company and that do not bear any restrictive legends, ("DTC"); and enable such securities Registerable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request at least two Business Days business days prior to any sale of securities Registerable Securities in any a firm commitment underwritten offering that meets the requirements of Section 2.1(e);public offering. (kj) Provide Use its best efforts to cause the Registerable Securities covered by 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 such securities registered hereunder to be listed on each securities exchange on which the same securities issued by the Company are then listed; (m) In connection registered 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the Holder is aware; or (iv) such information is independently developed approved 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.other governmental

Appears in 1 contract

Samples: Registration Rights Agreement (Packaged Ice Inc)

Registration Procedures. In The parties hereto agree that the case initial filing and declaration of each registration effected by effectiveness of any particular Registration Statement shall not contemplate an Underwritten Offering and the Company pursuant shall not be required to this Article IIcooperate with any Underwritten Offering prior to such declaration of effectiveness. Although the Holders may after the declaration of effectiveness of a Registration Statement engage underwriters in connection with their distribution of Registrable Securities and the Company will cooperate with any reasonable requests for its cooperation in connection with any such engagement, the Company will use its reasonable best efforts shall in no event be required to pay any expenses associated with any such Underwritten Offering, except as otherwise specified herein. If and whenever the Company is required by the provisions hereof to effect such the registration to permit of any Registrable Securities under the sale of securities in accordance with Securities Act, the intended method or methods of distribution thereof Company will, 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 topossible: (a) Prepare prepare and file with the required TZE Commission a registration statement with respect to such Registrable Securities, respond as promptly as possible to any comments received from the Commission, and use its reasonable commercial efforts to cause such Registration StatementStatement to become and remain effective for the Effectiveness Period with respect thereto, including all exhibits and financial statements required pursuant promptly provide to the Securities Act to be filed therewith, and before filing such registration statement, or any amendments or supplements thereto, or Prospectus, furnish to the Holder or group of Holders Purchaser copies of all documents prepared to be filed, which documents shall be subject to the review of, the Holder or group filings and Commission letters of Holders and their respective counselcomment relating thereto; (ib) Prepare prepare and file with the Commission such amendments, including post-effective amendments, amendments and supplements to the TZE such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective as to the Registrable Securities for the Effectiveness Period, (ii) prepare and file with the Commission as promptly as practicable any additional registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities, (iii) cause any related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, and (v) 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 such Registration Statement during and to keep such Registration Statement effective until the expiration of the Effectiveness Period 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 such Registration Statement.; (c) Furnish furnish to the Holder or group Purchaser such number of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Holders or any 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 the Prospectus included therein by reference and all exhibits (including those incorporated each preliminary Prospectus) as the Purchaser reasonably may request to facilitate the public sale or disposition of the Registrable Securities covered by reference)such Registration Statement; (d) Furnish, without charge, such number of Prospectuses, including any preliminary Prospectuses, and other documents incident thereto, including any amendment of use its commercially reasonable efforts to register 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 declared effective, to the extent required by applicable law, register and qualify the securities Purchaser’s Registrable Securities covered by such registration statement pursuant to Registration Statement under the securities or blue sky sky” laws of each jurisdiction such jurisdictions within the United States as shall be the Purchaser may reasonably requested by the Holder or group of Holders; request, provided, however, that the Company shall not for any such purpose be required in connection therewith or to qualify generally to transact business as a condition thereto to qualify to do business foreign corporation in any jurisdiction where it is not so qualified or to file a general consent to general service of process in any such states or jurisdictions where it jurisdiction; (e) list the Registrable Securities covered by such Registration Statement with any securities exchange on which the Common Stock of the Company is not then so subjectlisted; (f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (ii) of any written comments by the Commission or any request by the Commission or any other federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; (g) Promptly immediately 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 or any order by the Commission or any other federal or state governmental authority or regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings for such purposes; (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities so registered for offering or sale in any jurisdiction or the initiation, or written threatened initiation, of any proceeding for such purpose; and (iii) Purchaser at any time when a Prospectus relating to the TZE Registration Statement thereto is required to be delivered pursuant to under the Securities Act Act, of the occurrence happening of any event of which the Company has knowledge as a result of which the Prospectus included contained in such registration statementRegistration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, not misleading, and following such notification promptly prepare and furnish to the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus 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 in light of the circumstances under which they were made not misleading;then existing; and (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 such securities registered hereunder to be listed on each securities exchange on which the same 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 indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of Section 2.1(eg) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by any Holder, by the managing underwriter Purchaser and by any attorney, accountant or other agent retained by any such Holder or any such underwriterthe Purchaser, all pertinent publicly available, non-confidential financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all publicly available, non-confidential information reasonably requested by any such Person in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibilitythe attorney, provided that any such Person gaining access to information regarding the Company pursuant to this Section 2.4(r) shall agree to hold such information in strict confidence and shall not make any disclosure accountant or use any such information that the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 agent of the Company to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related theretoPurchaser.

Appears in 1 contract

Samples: Minimum Borrowing Note Registration Rights Agreement (Digital Lifestyles Group Inc)

Registration Procedures. In connection with the case of each Company's registration effected by the Company pursuant to this Article IIobligations hereunder, the Company will 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 toshall: (a) Prepare the required TZE Registration Statement, including all exhibits and financial statements required pursuant Not less than five Trading Days prior to the Securities Act filing of each Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be filed therewithincorporated therein by reference), and before filing such registration statementthe Company shall, or any amendments or supplements thereto, or Prospectus, (i) furnish to the each Holder or group of Holders copies of all such documents prepared proposed to be filed, which documents shall (other than those incorporated or deemed to be incorporated by reference) will be subject to the review ofof such Holders, 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 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 shall reasonably and in good faith object, provided, the Holder or group Company is notified of such objection in writing no later than 3 Trading Days after the Holders and their respective counsel;have been so furnished copies of such documents. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period, (ii) Period and prepare and file with the Commission as promptly as practicable any such additional registration statements as may be necessary Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, ; (iiiii) cause any the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, and as so supplemented or amended, amended to be filed pursuant to Rule 424, ; (iviii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto, thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement; and (viv) 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 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 as set forth in the TZE such Registration StatementStatement as so amended or in such Prospectus as so supplemented. (c) Furnish 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 Holder or group 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 (which notice shall, pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and each underwriter, (if any, without charge, as many conformed copies as requested by any such Holder or group of Holders Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any underwriter may reasonably request of the TZE Registration Statement and any amendment Prospectus supplement 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 a Registration Statement is declared effective, proposed to be filed; (B) when the extent required by applicable law, register Commission notifies the Company whether there will be a "review" of such Registration Statement and qualify whenever the securities covered by Commission comments in writing on such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be reasonably requested by the Holder or group of Holders; provided, however, that Registration Statement (the Company shall not be required in connection therewith or as a condition provide true and complete copies thereof and all written responses thereto to qualify to do business or to file a general consent to service each of process in any such states or jurisdictions where it is not then so subject; (f) Notify the Holder or group of Holders and the managing underwriter, if any, Holders); and (if requestedC) confirm such advice in writing and provide copies of the relevant documentswith respect to a Registration Statement or any post-effective amendment, as soon as reasonably practicable after notice thereof is received by the Company, (i) when the TZE Registration Statement, or any amendment or supplement thereto, same has been filed or becomes effective and when the applicable Prospectus has been filedbecome effective; and (ii) 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 a Registration Statement or the Prospectus or for additional information; ; (g) Promptly notify the Holder or group of Holders (iiii) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE a Registration Statement covering any or any order by all of the Commission Registrable Securities or any other federal or state governmental authority or regulatory authority preventing or suspending the use initiation of any preliminary or final Prospectus or the initiation, or written threatened initiation, of any proceedings Proceedings for such purposesthat purpose; (iiiv) 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 securities so registered Registrable Securities for offering or sale in any jurisdiction jurisdiction, or the initiation, initiation or written threatened initiation, threatening of any proceeding Proceeding for such purpose; and (iiiv) at any time when a Prospectus relating to the TZE Registration Statement is required to be delivered pursuant to the Securities Act of the occurrence of any event as a result or passage of which time that makes the Prospectus financial statements included in such registration statementa Registration Statement ineligible for inclusion therein or any statement made in 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 a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; and (vi) 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 the Registration Statement or Prospectus; provided that any 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 Holders make no acknowledgement that any such information is material, non-public information. (e) Promptly deliver to each Holder, 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. 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. (f) Use commercially reasonable efforts to register or qualify the resale of such Registrable Securities as required under applicable securities or Blue Sky laws of 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; 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 subject the Company to any material tax in any such jurisdiction where it is not then so subject. (g) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and following to enable such notification Registrable Securities to be in such denominations and registered in such names as any such Holders may request. (h) Upon the occurrence of any event contemplated by this Section 3, as promptly prepare and furnish as reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Holder or group Company and its stockholders of Holders a reasonable number the premature disclosure of copies of such event, prepare a supplement toor amendment, including a post-effective amendment, to a Registration Statement or an amendment ofa supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, such Prospectus as may be necessary and file any other required document so that, as thereafter delivered to the purchasers of such securitiesdelivered, neither a Registration Statement nor such Prospectus shall not 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 therein, in light of the circumstances under which they were made 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. (hi) Prevent or Comply with all applicable rules and regulations of the Commission. (j) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the use effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) 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 Registrable Securities 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 jurisdiction, at the requirements of Section 2.1(e);earliest practicable moment. (k) Provide a transfer agent and registrar for all Securities registered pursuant The Company may require, at any time prior to the TZE Registration Statement and third Trading Day prior to the Filing Date, each Holder to furnish to the Company a CUSIP statement as to the number for all of shares of Common Stock beneficially owned by such securitiesHolder and, 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 same securities issued if requested by the Company are then listed; (m) In connection with any underwritten offering meeting Commission and the requirements of Section 2.1(e), enter into Holder is not 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 underwritingindividual, the indemnification and contribution controlling person thereof, within three Trading days of the Company's request. 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 Holder information within three Trading Days of the Company's request, any partial liquidated damages that are accruing as to the Holders at such time shall be several tolled and not joint, and (iv) if participating in such underwriting, the aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering; (n) In connection with any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and the underwriter an opinion from counsel for the Company dated the date of the closing pursuant to the underwriting agreement, in customary form, scope and substance, which opinion shall be reasonably satisfactory Event that may otherwise occur as 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 solely because 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, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act; (r) In connection with any underwritten offering meeting the requirements of 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 managing underwriter and by any attorney, accountant or other agent retained by any such Holder or any such underwriter, all pertinent financial and other records, corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such disposition as delay shall be necessary to enable them to exercise their due diligence responsibilitysuspended, provided that any such Person gaining access to information regarding the Company 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 determines in good faith to be confidential, and of which determination such Person is notified, unless (i) the release of until such information is required by law; (ii) such information is or becomes publicly known other than through a breach of this or any other agreement; (iii) such information is or becomes available delivered to such Person on a non-confidential basis from a source other than the Company, which source had no contractual or other duty of confidentiality to the Company with respect to such information and of which the 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 participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto.

Appears in 1 contract

Samples: Registration Rights Agreement (Tasker Capital Corp)

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