Required Shelf Registration. (a) Following the Eligibility Date, the Company shall use its reasonable best efforts to: (i) prepare and file the Shelf Registration Statement with the SEC as soon as reasonably practicable but no later than the date that is 60 days after the Eligibility Date; and (ii) maintain the effectiveness of the Shelf Registration Statement until the later to occur of: (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement in accordance with the intended methods of distribution by the Holders of the Registrable Shares as set forth in the Shelf Registration Statement, and (B) the date upon which the Registrable Shares covered by the Shelf Registration Statement become eligible for resale pursuant to Rule 144 under the Securities Act (the "Required Effectiveness Period"). (b) The Company shall (i) notify each Holder of the proposed filing the Shelf Registration Statement with the SEC at least 30 days prior to the proposed filing date of the Shelf Registration Statement and (ii) afford each Holder with the opportunity to include all or any part of the Registrable Shares then owned by such Holder in the Shelf Registration Statement. (c) In order to exercise a Holder's right to include all or any part of the Registrable Shares then owned by them, such Holder shall (i) notify the Company of the number of Registrable Shares such Holder wishes to include in the Shelf Registration Statement and complete and sign the selling stockholder questionnaire included in the notice described in Section 2(b) hereof within twenty (20) days after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled to be named as a selling stockholder in the Shelf Registration Statement or use the Prospectus forming a part thereof unless such Holder complies with this Section 2(c). (d) If any Holders propose to distribute their Registrable Shares pursuant to the Shelf Registration Statement in an underwritten offering in which the anticipated aggregate offering price of their Registrable Shares is at least $10 million (a "Qualified Secondary Underwritten Offering"), the Company agrees to use its reasonable best efforts to effect the registration and the sale of the Registrable Shares pursuant to one (1) Qualified Secondary Underwritten Offering, and pursuant thereto the Company shall comply with the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) of Section 5(a).
Appears in 2 contracts
Samples: Registration Rights Agreement (Northstar Realty), Registration Rights Agreement (Northstar Realty)
Required Shelf Registration. (ai) Following The Company agrees that, as promptly as practical after the Eligibility Datetermination of the Merger Agreement, and in any event no later than 90 days thereafter, after the date on which the Merger Agreement is terminated, the Company shall use its reasonable best efforts to:
(i) to prepare and file with the Commission a "shelf" Registration Statement on Form S-1 or Form S-3 for an offering to be made on a continuous basis pursuant to Rule 415 (or any successor rule) (the "Shelf Registration Statement") covering all of the Registrable ---------------------------- Securities. The Company will use its reasonable best efforts to have such Shelf Registration Statement declared effective by the SEC on or as soon as practicable after the date hereof. The Company shall use its reasonable best efforts to keep the Shelf Registration Statement with the SEC as soon as reasonably practicable but no later than the date that is 60 days after the Eligibility Date; and
(ii) maintain the effectiveness of the Shelf Registration Statement continuously effective until the later to occur of: earlier of (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement in accordance with the intended methods of distribution by date the Holders can sell all their shares of the Registrable Shares as set forth in the Shelf Registration Statement, Securities without any restrictions under Rule 144 and (B) the date upon on which no Registrable Securities remain outstanding. In the event the Company has complied with this Section by using a Form S-3 and becomes ineligible to use such Form, it shall use its reasonable best efforts to substitute therefor, as soon as practicable, a Form S-1 covering the Registrable Shares covered by Securities.
(ii) If the Company shall at any time receive a request in writing (a "Shelf Request") from Parent, or from any Holder or Holders holding a minimum ------------- of 10% of the Registrable Securities then outstanding (but in no event less than 200,000 shares (which number shall be adjusted in accordance with all splits, pro rata stock dividends or reclassifications of the Common Stock)) requesting an Underwritten Offering of Registrable Securities under the Shelf Registration Statement become eligible for resale pursuant to Rule 144 under that has anticipated aggregate proceeds at the Securities Act (the "Required Effectiveness Period").
(b) The Company shall (i) notify each Holder time of the proposed filing the Shelf Registration Statement with the SEC at least 30 days prior to the proposed filing date request (net of the Shelf Registration Statement underwriting discounts, commissions and (iiexpenses) afford each Holder with the opportunity to include all or any part in excess of the Registrable Shares then owned by such Holder in the Shelf Registration Statement.
(c) In order to exercise a Holder's right to include all or any part of the Registrable Shares then owned by them, such Holder shall (i) notify the Company of the number of Registrable Shares such Holder wishes to include in the Shelf Registration Statement and complete and sign the selling stockholder questionnaire included in the notice described in Section 2(b) hereof within twenty (20) days after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled to be named as a selling stockholder in the Shelf Registration Statement or use the Prospectus forming a part thereof unless such Holder complies with this Section 2(c).
(d) If any Holders propose to distribute their Registrable Shares pursuant to the Shelf Registration Statement in an underwritten offering in which the anticipated aggregate offering price of their Registrable Shares is at least $10 2 million (a "Qualified Secondary Underwritten OfferingRequired Shelf Registration"), the Company agrees shall, subject to the --------------------------- terms and conditions hereof, be obligated to use its reasonable best efforts to effect facilitate such proposed Underwritten Offering pursuant to the registration and terms of this Agreement.
(iii) Following receipt of a Shelf Request, the sale Company shall promptly, but in no event later than the fifth business day following receipt of such Shelf Request, give a Notice of Offering to all Holders (other than the Holder or Holders that made the Shelf Request), which shall set forth the right of such Holders to include any or all shares of Registrable Securities held by such Holders in the proposed offering, subject to the terms of this Agreement.
(iv) If at any time any of the Holders of the Registrable Shares Securities covered by the Shelf Registration Statement desire to sell Registrable Securities in an Underwritten Offering (which for the purposes of this Agreement shall not be deemed to include block trades) in accordance with the limitations of this Section 2(b)(iv), the investment banker or investment bankers that will manage the offering will be nationally recognized underwriters selected jointly by the Company, the Holder initiating such underwritten offering and the Holders owning a majority of the Registrable Securities held by Holders included in such offering.
(v) If a Required Shelf Registration pursuant to one (1this Section 2(b) Qualified Secondary involves an Underwritten Offering, and pursuant thereto the sole Underwriter or the lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder requesting registration) on or before the date 5 days prior to the date then scheduled for such offering that, in its opinion, the amount of Registrable Securities requested to be included in such Required Shelf Registration exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities being offered, the Company will include in such Required Shelf Registration only the amount of Registrable Securities that the Company is so advised can be sold in such offering; provided, however, that the Company shall comply be required to include in such Required Shelf Registration first, all Registrable Securities requested to be included in the Required Shelf Registration by the Holders and, to the extent not all such Registrable Securities can be included in such Required Shelf Registration, the number of Registrable Securities to be included shall be allocated pro rata on the basis of the number of shares of Common Stock beneficially owned at that time by all the Holders requesting to participate in the Required Shelf Registration or on such other basis as shall be agreed among the Holders, by agreement of the Majority Holders; and second, if all Registrable Securities requested to be included in the Required Shelf Registration by the Holders can be so included, all other securities requesting, in accordance with any registration rights which are granted in compliance with Section 6(a) of this Agreement, to be included in such Required Shelf Registration which are of the same class as the Registrable Securities and, to the extent not all such securities can be included in such Required Shelf Registration, the number of securities to be included shall be allocated pro rata among the holders thereof requesting inclusion in such Required Shelf Registration on the basis of the number of securities requested to be included by all such Holders.
(vi) A Shelf Request may be withdrawn prior to the filing of the Shelf Registration Statement by Parent where Parent made such Request (a "Withdrawn Shelf Request"), and a Required Shelf Registration Statement may be ----------------------- withdrawn prior to the effectiveness thereof by the Holders of a majority of the Registrable Securities included therein (a "Withdrawn Required Shelf ------------------------ Registration"), and, in either such event, such withdrawal shall not be treated ------------ as a Required Registration or a Required Shelf Registration for purposes of Section 2(a)(v).
(vii) The registration rights granted pursuant to the provisions of this Section 2(b) shall be in addition to the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) rights granted pursuant to the other provisions of this Section 5(a)2.
Appears in 1 contract
Required Shelf Registration. (a) Following Promptly following the Eligibility Datedate of this Agreement, the Company shall use its reasonable best efforts to:
(i) prepare and file the Shelf Registration Statement with the SEC as soon as reasonably practicable but no later than Commission a registration statement or add the date that is 60 days after Restricted Stock to an existing registration statement (in either case, the Eligibility Date; and
(ii) maintain the effectiveness of the Shelf Registration Statement until the later to occur of: (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement in accordance with the intended methods of distribution by the Holders of the Registrable Shares as set forth in the Shelf "Initial Registration Statement"), and which shall cover the resale from time to time of all Restricted Stock (B) and, to the date upon which the Registrable Shares covered by the Shelf Registration Statement become eligible for resale pursuant to Rule 144 extent allowable under the Securities Act and the Rules promulgated thereunder shall state that such Initial Registration Statement also covers such indeterminate number of additionalshares of Common Stock as may become issuable upon the exercise of the Warrants pursuant to the anti-dilution provisions contained in the Warrant Agreement) in an offering to be made on a continuous basis pursuant to a "shelf" registration statement under Rule 415. The Initial Registration Statement shall be on Form S-3 or other similar form (or any successor form), if the "Required Effectiveness Period").
(b) Company is eligible to use such form. The Company shall (i) notify each Holder of use its best efforts to cause the proposed filing the Shelf Initial Registration Statement with to be declared effective under the SEC at least 30 days Securities Act on or prior to the proposed filing 91st day after the date of the Shelf Registration Statement this Agreement and (ii) afford each Holder with keep the opportunity to include all or any part of the Registrable Shares then owned by such Holder in the Shelf Registration Statement.
(c) In order to exercise a Holder's right to include all or any part of the Registrable Shares then owned by them, such Holder shall (i) notify the Company of the number of Registrable Shares such Holder wishes to include in the Shelf Initial Registration Statement and complete and sign continuously effective under the selling stockholder questionnaire included in Securities Act (subject to Section 13(a) hereof) until the notice described in Section 2(bdate which is two (2) hereof within twenty (20) days years after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish date on which the shares can be sold pursuant to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled to be named as a selling stockholder in the Shelf Initial Registration Statement or use such earlier date when all shares of the Prospectus forming a part thereof unless such Holder complies with this Section 2(cRestricted Stock have been sold or may be sold without volume limitations pursuant to Rule 144 (the "Effectiveness Period").
(d) . If any Holders propose of the shares of Restricted Stock are to distribute their Registrable Shares pursuant to the Shelf Registration Statement be sold in an underwritten offering in which initiated by the anticipated aggregate offering price of their Registrable Shares is at least $10 million (Purchasers and effected through a "Qualified Secondary Underwritten Offering")supplement or amendment to the Initial Registration Statement, the Company agrees holders of a majority of such stock may designate the managing underwriter of such offering which will be a firm of recognized national standing, subject to use its reasonable best efforts to effect the registration and the sale approval of the Registrable Shares pursuant to one (1) Qualified Secondary Underwritten OfferingCompany, and pursuant thereto the Company which approval shall comply with the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) of Section 5(a)not be unreasonably withheld.
Appears in 1 contract
Samples: Registration Rights Agreement (Spectrasite Holdings Inc)
Required Shelf Registration. (a) Following (i) Within 45 days prior to each of the Eligibility second and third anniversaries of the Closing Date, the Company shall use its reasonable best efforts to:give notice to each of the Executives and their Affiliates who or which are holders of Registrable Shares informing such parties that, on or shortly after such anniversary of the Closing Date, the Company intends to file a registration statement for the purpose of effecting a Shelf Registration for Registrable Shares of the Executives and their respective Affiliates pursuant to this Section 2(a).
(ii) Each Executive and his or her Affiliates which hold Registrable Shares may elect to include in such Shelf Registration up to 50% of such Person's Registrable Shares (determined as of the date hereof) by giving notice to the Company to such effect within 20 days after the date of the Company's notice referred to in Section 2(a)(i).
(iii) No Shelf Registration statement effected pursuant to this Section 2(a) shall include an aggregate number of Registrable Shares in excess of 5% of the outstanding Common Stock, in each case as of December 31, 1998 or December 31, 1999, respectively. In the event that the Executives and their Affiliates which hold Registrable Shares seek to include in any such Shelf Registration a number of Registrable Shares in excess of such limitation, the Company shall register in such Shelf Registration the Registrable Shares proposed to be sold by the Executives and their respective Affiliates on a pro rata basis, based upon the number of Registrable Shares that each such party and their Affiliates originally sought to include in such Shelf Registration.
(iv) The Company shall not be required to effect any Shelf Registration pursuant to this Section 2(a) unless at least an aggregate of 25,000 Registrable Shares are sought to be included therein.
(i) prepare and file Notwithstanding Section 2(a), each Executive shall have the right to require the Company to effect a Shelf Registration Statement with for all of the SEC as soon as reasonably practicable but no later than Registrable Shares of such Executive and his or her respective Affiliates in the date that is 60 days after event of (A) such Executive's death or Permanent Disability; (B) the Eligibility termination of such Executive's employment by the Company without Cause following the Closing Date; and(C) a Change in Control; or (D) Executive's Voluntary Termination of employment by the Company for Good Reason.
(ii) maintain In order to exercise his or her rights under Section 2(b), an Executive shall deliver notice to the effectiveness Company to such effect within 12- months after the occurrence of any of the Shelf Registration Statement until the later to occur of: (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement events described in accordance with the intended methods of distribution by the Holders of the Registrable Shares as set forth in the Shelf Registration Statement, and (B) the date upon which the Registrable Shares covered by the Shelf Registration Statement become eligible for resale pursuant to Rule 144 under the Securities Act (the "Required Effectiveness Period"Section 2(b)(i).
(b) The Company shall (i) notify each Holder of the proposed filing the Shelf Registration Statement with the SEC at least 30 days prior to the proposed filing date of the Shelf Registration Statement and (ii) afford each Holder with the opportunity to include all or any part of the Registrable Shares then owned by such Holder in the Shelf Registration Statement.
(c) In order to exercise a Holder's right to include all or any part of the Registrable Shares then owned by them, such Holder shall (i) notify the Company of the number of Registrable Shares such Holder wishes to include in the Shelf Registration Statement and complete and sign the selling stockholder questionnaire included in the notice described in Section 2(b) hereof within twenty (20) days after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled to be named as a selling stockholder in the Shelf Registration Statement or use the Prospectus forming a part thereof unless such Holder complies with this Section 2(c).
(d) If any Holders propose to distribute their Registrable Shares pursuant to the Shelf Registration Statement in an underwritten offering in which the anticipated aggregate offering price of their Registrable Shares is at least $10 million (a "Qualified Secondary Underwritten Offering"), the The Company agrees to use its reasonable best efforts to effect keep each Registration Statement filed pursuant to this Section 2 continuously effective and usable for the registration resale of Registrable Shares for a period ending on the earlier of (i) one year, two years in the case of a Registration Statement filed pursuant to Section 2(b), from the date upon which such Registration Statement was declared effective and (ii) the sale first date on which all the Registrable Shares covered by such Shelf Registration have been sold pursuant to such Registration Statement.
(d) Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be required to file a Registration Statement or cause it to be declared effective at a time (x) after completion of a fiscal year end, but prior to the availability of the year end audited financial statements, (y) when the Company, in the good faith judgement of its board of directors shall determine that any offering of Registrable Shares would impede, delay or otherwise interfere with any pending or contemplated acquisition or other material transaction involving the Company or (z) when the Company is in possession of material information which, in the good faith judgment of the Company's board of directors, if disclosed in a Registration Statement, would be materially harmful to the interests of the Company and its holders (any such period in clauses (y) or (z) is referred to as a "Delay Period"). A Delay Period shall commence on and include the date that the Company gives written notice (such notice referred to herein as the "Delay Notice") to the Holders that it is not required to file a Registration Statement or cause it to be declared effective pursuant to the provisions of this Section 2(d) and shall end on the date when the Holders are advised in writing by the Company that the current Delay Period is over (it being understood that the Company shall give such notice to all Holders promptly upon making the determination that the Delay Period is over); provided; however, that the Company shall not be entitled to Delay Periods having durations that exceed 120 days in the aggregate during any calendar year. Each Holder shall cease all disposition efforts with respect to Registrable Shares held by them immediately upon receipt of a Delay Notice.
(e) The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods and such time period or the extension thereof required by the preceding sentence is hereafter referred to as the "Effectiveness Period."
(f) All registrations under this Section 2 shall be effected by the Company's filing of a Registration Statement on Form S-2 or S-3 or any similar short-form Registration Statement. If the Company is not eligible to use Form S-2 or S-3 or any similar short-form Registration Statement at the time a Registration Statement is required to be filed pursuant to this Section 2, the rights of the each Executive hereunder shall be extended until the Company becomes so eligible.
(g) The Company may, in its sole discretion, include other securities in such Shelf Registration (whether for the account of the Company or other Persons or otherwise combine the offering of the Registrable Shares pursuant to one (1) Qualified Secondary Underwritten Offering, and pursuant thereto with any offering of other securities of the Company shall comply with (whether for the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) account of Section 5(athe Company or otherwise).
Appears in 1 contract
Required Shelf Registration. (a) Following At any time following 90 days prior to the Eligibility Datethird anniversary of the date of this Agreement, the Shareholders shall have the right to request in writing that the Company shall use its reasonable best efforts to:
(i) prepare and file the Shelf Registration Statement with the SEC as soon as reasonably practicable but no later than the date that is 60 90 days after the Eligibility Datedate such request is received by the Company; and
and (ii) maintain the effectiveness of the Shelf Registration Statement until the later earliest to occur of: (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement in accordance with the intended methods of distribution by the Holders of the Registrable Shares Shareholders as set forth in the Shelf Registration Statement, and (B) the date upon which all the Registrable Shares covered by the Shelf Registration Statement become eligible for resale have been distributed pursuant to Rule 144 (or any similar provisions then in force) under the Securities Act or are saleable pursuant to Rule 144(k) promulgated by the SEC pursuant to the Securities Act, (C) the "Required Effectiveness Period")second anniversary of the date on which the Shelf Registration Statement first became effective, and (D) the date upon which the Shareholders collectively hold less than 10% of Registrable Shares outstanding on the date hereof.
(ba) The Company shall (i) notify each Holder Shareholder of the proposed filing of the Shelf Registration Statement with the SEC at least 30 days prior to the proposed filing date of the Shelf Registration Statement and (ii) afford each Holder Shareholder with the opportunity to include all or any part of the Registrable Shares then owned by such Holder Shareholder in the Shelf Registration Statement.
(cb) In order to exercise a HolderShareholder's right to include all or any part of the Registrable Shares then owned by themhim, such Holder Shareholder shall (i) notify the Company of the number of Registrable Shares such Holder Shareholder wishes to include in the Shelf Registration Statement and complete and sign the selling stockholder questionnaire shareholder questionnaire, which shall be in customary form, included in the notice described in Section 2(b2.1(a) hereof within twenty (20) days after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Sharesrequest in accordance with Section 2.5(b). No Holder Shareholder shall be entitled to be named as a selling stockholder shareholder in the Shelf Registration Statement or use the Prospectus forming a part thereof unless such Holder Shareholder complies with this Section 2(c2.1(b).
(dc) If any Holders propose Shareholder proposes to distribute their his Registrable Shares pursuant to the Shelf Registration Statement in an underwritten offering in which the anticipated aggregate offering price of their Registrable Shares is at least $10 million (a "Qualified Secondary Underwritten Offering"), the Company agrees to use its reasonable best efforts to effect the registration and the sale of the Registrable Shares pursuant to one two (12) Qualified Secondary Underwritten OfferingOfferings, and pursuant thereto the Company shall comply with the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) of Section 5(a)herein with respect to Underwritten Offerings.
Appears in 1 contract
Required Shelf Registration. (ai) Following Within 45 days prior to each of the Eligibility second and third anniversaries of the Closing Date, the Company shall use its reasonable best efforts to:give notice to each of the Executives and their Affiliates who or which are holders of Registrable Shares informing such parties that, on or shortly after such anniversary of the Closing Date, the Company intends to file a registration statement for the purpose of effecting a Shelf Registration for Registrable Shares of the Executives and their respective Affiliates pursuant to this Section 2(a).
(ii) Each Executive and his or her Affiliates which hold Registrable Shares may elect to include in such Shelf Registration up to 50% of such Person's Registrable Shares (determined as of the date hereof) by giving notice to the Company to such effect within 20 days after the date of the Company's notice referred to in Section 2(a)(i).
(iii) No Shelf Registration statement effected pursuant to this Section 2(a) shall include an aggregate number of Registrable Shares in excess of 5% of the outstanding Common Stock, in each case as of December 31, 1998 or December 31, 1999, respectively. In the event that the Executives and their Affiliates which hold Registrable Shares seek to include in any such Shelf Registration a number of Registrable Shares in excess of such limitation, the Company shall register in such Shelf Registration the Registrable Shares proposed to be sold by the Executives and their respective Affiliates on a pro rata basis, based upon the number --- ---- of Registrable Shares that each such party and their Affiliates originally sought to include in such Shelf Registration.
(iv) The Company shall not be required to effect any Shelf Registration pursuant to this Section 2(a) unless at least an aggregate of 25,000 Registrable Shares are sought to be included therein.
(i) prepare and file Notwithstanding Section 2(a), each Executive shall have the right to require the Company to effect a Shelf Registration Statement with for all of the SEC as soon as reasonably practicable but no later than Registrable Shares of such Executive and his or her respective Affiliates in the date that is 60 days after event of (A) such Executive's death or Permanent Disability; (B) the Eligibility termination of such Executive's employment by the Company without Cause following the Closing Date; and(C) a Change in Control; or (D) Executive's Voluntary Termination of employment by the Company for Good Reason.
(ii) maintain In order to exercise his or her rights under Section 2(b), an Executive shall deliver notice to the effectiveness Company to such effect within 12- months after the occurrence of any of the Shelf Registration Statement until the later to occur of: (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement events described in accordance with the intended methods of distribution by the Holders of the Registrable Shares as set forth in the Shelf Registration Statement, and (B) the date upon which the Registrable Shares covered by the Shelf Registration Statement become eligible for resale pursuant to Rule 144 under the Securities Act (the "Required Effectiveness Period"Section 2(b)(i).
(b) The Company shall (i) notify each Holder of the proposed filing the Shelf Registration Statement with the SEC at least 30 days prior to the proposed filing date of the Shelf Registration Statement and (ii) afford each Holder with the opportunity to include all or any part of the Registrable Shares then owned by such Holder in the Shelf Registration Statement.
(c) In order to exercise a Holder's right to include all or any part of the Registrable Shares then owned by them, such Holder shall (i) notify the Company of the number of Registrable Shares such Holder wishes to include in the Shelf Registration Statement and complete and sign the selling stockholder questionnaire included in the notice described in Section 2(b) hereof within twenty (20) days after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled to be named as a selling stockholder in the Shelf Registration Statement or use the Prospectus forming a part thereof unless such Holder complies with this Section 2(c).
(d) If any Holders propose to distribute their Registrable Shares pursuant to the Shelf Registration Statement in an underwritten offering in which the anticipated aggregate offering price of their Registrable Shares is at least $10 million (a "Qualified Secondary Underwritten Offering"), the The Company agrees to use its reasonable best efforts to effect keep each Registration Statement filed pursuant to this Section 2 continuously effective and usable for the registration resale of Registrable Shares for a period ending on the earlier of (i) one year, two years in the case of a Registration Statement filed pursuant to Section 2(b), from the date upon which such Registration Statement was declared effective and (ii) the sale first date on which all the Registrable Shares covered by such Shelf Registration have been sold pursuant to such Registration Statement.
(d) Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be required to file a Registration Statement or cause it to be declared effective at a time (x) after completion of a fiscal year end, but prior to the availability of the year end audited financial statements, (y) when the Company, in the good faith judgement of its board of directors shall determine that any offering of Registrable Shares would impede, delay or otherwise interfere with any pending or contemplated acquisition or other material transaction involving the Company or (z) when the Company is in possession of material information which, in the good faith judgment of the Company's board of directors, if disclosed in a Registration Statement, would be materially harmful to the interests of the Company and its holders (any such period in clauses (y) or (z) is referred to as a "Delay Period"). A Delay Period shall commence on and include the date that the Company gives written notice (such notice referred to herein as the "Delay Notice") to the Holders that it is not required to file a Registration Statement or cause it to be declared effective pursuant to the provisions of this Section 2(d) and shall end on the date when the Holders are advised in writing by the Company that the current Delay Period is over (it being understood that the Company shall give such notice to all Holders promptly upon making the determination that the Delay Period is over); provided; however, that the Company shall not be entitled to -------- ------- Delay Periods having durations that exceed 120 days in the aggregate during any calendar year. Each Holder shall cease all disposition efforts with respect to Registrable Shares held by them immediately upon receipt of a Delay Notice.
(e) The time period for which the Company is required to maintain the effectiveness of any Registration Statement shall be extended by the aggregate number of days of all Delay Periods and such time period or the extension thereof required by the preceding sentence is hereafter referred to as the "Effectiveness Period."
(f) All registrations under this Section 2 shall be effected by the Company's filing of a Registration Statement on Form S-2 or S-3 or any similar short-form Registration Statement. If the Company is not eligible to use Form S-2 or S-3 or any similar short-form Registration Statement at the time a Registration Statement is required to be filed pursuant to this Section 2, the rights of the each Executive hereunder shall be extended until the Company becomes so eligible.
(g) The Company may, in its sole discretion, include other securities in such Shelf Registration (whether for the account of the Company or other Persons or otherwise combine the offering of the Registrable Shares pursuant to one (1) Qualified Secondary Underwritten Offering, and pursuant thereto with any offering of other securities of the Company shall comply with (whether for the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) account of Section 5(athe Company or otherwise).
Appears in 1 contract
Required Shelf Registration. (a) Following the Eligibility DateThe Company shall file with, and shall cause to be declared effective by, the Company SEC prior to times set forth below, a Registration Statement under the Securities Act relating to the following number of Registrable Shares, which Registration Statement shall use its reasonable best efforts to:provide for the sale by the holders thereof of the Registrable Shares included therein from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, but need not provide for an underwritten registration (each, a "Shelf Registration"):
(i) prepare and file prior to the Shelf completion of the Pooling Period, a whole number of shares of Common Stock equal to (x) the quotient of $11 million divided by the average per share price of Common Stock for the ten trading days prior to the Closing Date if the Closing Date occurs on or before August 31, 1996 or (y) the quotient of $15 million divided by the average per share price of Common Stock for the ten trading days prior to the Closing Date if the Closing Date occurs after August 31, 1996 (it being understood, however, that the Company shall not be required to request acceleration of the effective date of such Registration Statement with until the SEC as soon as reasonably practicable but no later than completion of the date that is 60 days after Pooling Period);
(ii) prior to the Eligibility first anniversary of the Closing Date, a whole number of shares of Common Stock equal to the product of (x) the number of shares of Common Stock then held by the Shareholders which were acquired pursuant to the Merger Agreement multiplied by (y) 50%; and
(iiiii) maintain prior to the effectiveness second anniversary of the Shelf Registration Statement until Closing Date, the later to occur of: (A) the completion remaining number of the distribution shares of the Registrable Shares covered Common Stock acquired by the Shelf Registration Statement in accordance with the intended methods of distribution by the Holders of the Registrable Shares as set forth in the Shelf Registration Statement, and (B) the date upon which the Registrable Shares covered by the Shelf Registration Statement become eligible for resale Shareholders pursuant to Rule 144 under the Securities Act (the "Required Effectiveness Period")Merger Agreement which have not previously been sold or otherwise disposed of.
(b) The Company shall agrees to use its best efforts to keep each Registration Statement filed pursuant to this Section 2 continuously effective and usable for the resale of Registrable Shares for a period ending on the earlier of (i) notify each Holder of two years from the proposed filing the Shelf date upon which such Registration Statement with the SEC at least 30 days prior to the proposed filing date of the Shelf Registration Statement was declared effective and (ii) afford each Holder with the opportunity to include first date on which all or any part of the Registrable Shares then owned covered by such Holder in the Shelf Registration have been sold pursuant to such Registration Statement.
(c) In order Notwithstanding anything to exercise the contrary contained in this Agreement, the Company shall not be required to file a Holder's right Registration Statement or cause it to include all or any part be declared effective at a time (x) after completion of a fiscal year end, but prior to the availability of the Registrable Shares then owned by themyear end audited financial statements, such Holder (y) when the Company, in the good faith judgement of its board of directors shall (i) notify the Company of the number determine that any offering of Registrable Shares such Holder wishes to include would impede, delay or otherwise interfere with any pending or contemplated acquisition involving the Company or (z) when the Company is in possession of material information which, in the Shelf good faith judgment of the Company's board of directors, if disclosed in a Registration Statement Statement, would be materially harmful to the interests of the Company and complete its shareholders (any such period in clauses (y) or (z) is referred to as a "Delay Period"). A Delay Period shall commence on and sign include the selling stockholder questionnaire included in the notice described in Section 2(b) hereof within twenty (20) days after date that the Company gives written notice (such notice in accordance with Section 10(areferred to herein as the "Delay Notice") hereof, and (ii) furnish to the Shareholders that it is not required to file a Registration Statement or cause it to be declared effective pursuant to the provisions of this Section 2(c) and shall end on the date when the Shareholders are advised in writing by the Company such information as that the current Delay Period is over (it being understood that the Company shall reasonably requestgive such notice to all Shareholders promptly upon making the determination that the Delay Period is over); provided; however, including, but that the Company shall not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled to be named as a selling stockholder Delay Periods having durations that exceed 90 days in the Shelf Registration Statement or use the Prospectus forming aggregate during any calendar year. Each Shareholder shall cease all disposition efforts with respect to Registrable Shares held by them immediately upon receipt of a part thereof unless such Holder complies with this Section 2(c)Delay Notice.
(d) If The two year time period for which the Company is required to maintain the effectiveness of any Holders propose Registration Statement shall be extended by the aggregate number of days of all Delay Periods and such two year period or the extension thereof required by the preceding sentence is hereafter referred to distribute their Registrable Shares pursuant to as the "Effectiveness Period."
(e) The Company may, in its sole discretion, include other securities in such Shelf Registration Statement in an underwritten offering in which (whether for the anticipated aggregate offering price account of their Registrable Shares is at least $10 million (a "Qualified Secondary Underwritten Offering"), the Company agrees to use its reasonable best efforts to effect or otherwise, including without limitation any securities of the Company held by security holders, if any, who have piggyback registration and rights with respect thereto) or otherwise combine the sale offering of the Registrable Shares pursuant to one (1) Qualified Secondary Underwritten Offering, and pursuant thereto with any offering of other securities of the Company shall comply with (whether for the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) account of Section 5(athe Company or otherwise).
Appears in 1 contract
Required Shelf Registration. (a) Following The Corporation shall file with the Eligibility SEC a shelf registration statement covering the Registrable Shares for an offering to be made on a continuous or delayed basis pursuant to Rule 415 promulgated under the Securities Act (the “Initial Shelf Registration Statement”) by HWC in the manner designated by it (including, without limitation, a plan of distribution specified by HWC which shall provide HWC broad latitude in the manner of disposing of the Registrable Shares, including through block trades, “bought deals,” traditional underwritten offerings, ordinary brokerage sales and sales outside the Shelf Registration Statement pursuant to Rule 144). The Corporation shall not permit any securities other than the Registrable Shares to be included in the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement.
(b) The Corporation will cause, by the 30th day after the Closing Date, the Company Initial Shelf Registration Statement to be prepared and filed with the Commission and use its reasonable best efforts to have such Initial Shelf Registration Statement declared effective by the Commission as soon as practicable thereafter. The Corporation shall use its reasonable best efforts to:
(i) prepare and file to keep the Initial Shelf Registration Statement with the SEC as soon as reasonably practicable but no later than the date that is 60 days after the Eligibility Date; and
(ii) maintain the effectiveness of the Shelf Registration Statement until the later to occur of: (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement in accordance with the intended methods of distribution by the Holders of the Registrable Shares as set forth in the Shelf Registration Statement, and (B) the date upon which the Registrable Shares covered by the Shelf Registration Statement become eligible for resale pursuant to Rule 144 continuously effective under the Securities Act (the "Required “Effectiveness Period").
(b”) The Company shall until the earlier of (i) notify each Holder the later of (A) the date which is 24 months from the Closing Date and (B) such time as HWC ceases to own at least 5% of the proposed filing the Shelf Registration Statement with the SEC at least 30 days prior to the proposed filing date outstanding shares of Common Stock of the Shelf Registration Statement Corporation, and (ii) afford each Holder with the opportunity to include all or any part later of (x) the fourth anniversary of the Closing Date and (y) the earliest date that HWC may then dispose of all its Registrable Shares then owned without restriction under Rule 144(k) promulgated under the Securities Act). Notwithstanding the foregoing, the Corporation’s obligations under this Section 2(b) shall immediately terminate upon the sale of all Registrable Shares covered by such Holder any Shelf Registration Statement in the manner set forth and as contemplated in such Shelf Registration Statement.
(c) In order to exercise a Holder's right to include all If the Initial Shelf Registration Statement or any part Subsequent Shelf Registration Statement ceases to be effective for any reason at any time during the Effectiveness Period (other than because of the sale of all of the securities registered thereunder), the Corporation shall, in addition to fulfilling its obligations under Section 2(d) below, within five Business Days of such cessation of effectiveness or, if such cessation is reasonably foreseeable, prior to such cessation, as appropriate either (i) amend such Shelf Registration Statement in a manner to obtain the withdrawal of the order suspending the effectiveness thereof (ii) or file an additional shelf registration statement pursuant to Rule 415 promulgated under the Securities Act (each, a “Subsequent Shelf Registration Statement”) covering all of the Registrable Shares then owned covered by them, such Holder shall (i) notify and not sold under the Company of the number of Registrable Shares such Holder wishes to include in the Shelf Registration Statement and complete and sign the selling stockholder questionnaire included in the notice described in Section 2(b) hereof within twenty (20) days after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled to be named as a selling stockholder in the Initial Shelf Registration Statement or use an earlier Subsequent Shelf Registration Statement. If a Subsequent Shelf Registration Statement is filed, the Prospectus forming a part thereof unless Corporation will cause the Subsequent Shelf Registration Statement to be declared effective under the Securities Act as soon as practicable after such Holder complies with this Section 2(c)filing and to keep such Subsequent Shelf Registration Statement continuously effective during the remainder of the Effectiveness Period.
(d) If The Corporation shall promptly supplement and amend each Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration Statement, if required by the Securities Act, or if reasonably requested by HWC or by any Holders propose to distribute their underwriter of the Registrable Shares pursuant acting on behalf of HWC. Notwithstanding the foregoing, the Corporation shall not be obligated to prepare more than three supplements or amendments for use in traditional underwritten public offerings of Registrable Shares under the Shelf Registration Statement which would involve a “road show” or similar activity on the part of management of the Corporation (a “Traditional Underwritten Public Offering”) nor more than one such supplement or amendment in any twelve month period. Additionally, the Corporation may delay for a period of up to 60 days the filing or effectiveness of any supplement or amendment to the Shelf Registration Statement required in connection with an underwritten public offering if at the time of such request (i) the Corporation is engaged, or intends to engage within 60 days of the time of such request, in a firm commitment underwritten public offering of Primary Shares in which the anticipated aggregate offering price holders of their Registrable Shares is at least $10 million may include Registrable Shares pursuant to Section 3 and such plans or intentions have been approved by the Board of Directors of the Corporation prior to the time of such request (a "Qualified Secondary Underwritten Offering"), the Company agrees to use its reasonable best efforts to effect the registration and the sale Corporation notifies HWC as soon as practicable after such request but in no event later than the second business day after such request) or (ii) on account of a suspension in accordance with Section 6 hereof.
(e) Any Shelf Registration Statement filed in accordance with this Agreement shall be on such appropriate registration form of the Commission (i) as shall be selected by the Corporation and as shall be reasonably acceptable to HWC and (ii) as shall permit the disposition of the Registrable Shares pursuant to one (1) Qualified Secondary Underwritten Offering, and pursuant thereto the Company shall comply in accordance with the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) of Section 5(a2(a).
Appears in 1 contract
Samples: Registration Rights Agreement (Boots & Coots International Well Control Inc)
Required Shelf Registration. (a) Following At any time following 90 days prior to the Eligibility Datethird anniversary of the date of this Agreement, the Shareholders shall have the right to request in writing that the Company shall use its reasonable best efforts to:
(i) prepare and file the Shelf Registration Statement with the SEC as soon as reasonably practicable but no later than the date that is 60 90 days after the Eligibility Datedate such request is received by the Company; and
and (ii) maintain the effectiveness of the Shelf Registration Statement until the later earliest to occur of: (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement in accordance with the intended methods of distribution by the Holders of the Registrable Shares Shareholders as set forth in the Shelf Registration Statement, and (B) the date upon which all the Registrable Shares covered by the Shelf Registration Statement become eligible for resale have been distributed pursuant to Rule 144 (or any similar provisions then in force) under the Securities Act or are saleable pursuant to Rule 144(k) promulgated by the SEC pursuant to the Securities Act, (C) the "Required Effectiveness Period")second anniversary of the date on which the Shelf Registration Statement first became effective, and (D) the date upon which the Shareholders collectively hold less than 10% of Registrable Shares outstanding on the date hereof.
(ba) The Company shall (i) notify each Holder Shareholder of the proposed filing of the Shelf Registration Statement with the SEC at least 30 days prior to the proposed filing date of the Shelf Registration Statement and (ii) afford each Holder Shareholder with the opportunity to include all or any part of the Registrable Shares then owned by such Holder Shareholder in the Shelf Registration Statement.
(cb) In order to exercise a Holder's Shareholder’s right to include all or any part of the Registrable Shares then owned by themhim, such Holder Shareholder shall (i) notify the Company of the number of Registrable Shares such Holder Shareholder wishes to include in the Shelf Registration Statement and complete and sign the selling stockholder questionnaire shareholder questionnaire, which shall be in customary form, included in the notice described in Section 2(b2.1(a) hereof within twenty (20) days after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Sharesrequest in accordance with Section 2.5(b). No Holder Shareholder shall be entitled to be named as a selling stockholder shareholder in the Shelf Registration Statement or use the Prospectus forming a part thereof unless such Holder Shareholder complies with this Section 2(c2.1(b).
(dc) If any Holders propose Shareholder proposes to distribute their his Registrable Shares pursuant to the Shelf Registration Statement in an underwritten offering in which the anticipated aggregate offering price of their Registrable Shares is at least $10 million (a "“Qualified Secondary Underwritten Offering"”), the Company agrees to use its reasonable best efforts to effect the registration and the sale of the Registrable Shares pursuant to one two (12) Qualified Secondary Underwritten OfferingOfferings, and pursuant thereto the Company shall comply with the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) of Section 5(a)herein with respect to Underwritten Offerings.
Appears in 1 contract
Required Shelf Registration. (a) Following the Eligibility Date, the Company shall use its reasonable best efforts to:
(i) prepare and file the Shelf Registration Statement with the SEC as soon as reasonably practicable but no later than the date that is 60 days after the Eligibility Date; and
(ii) maintain the effectiveness of the Shelf Registration Statement until On or prior to the later to occur of: (Ai) April 15, 2002; or, (ii) twenty (20) days following the consummation of the transaction set forth in the Asset Purchase Agreement (the "Required Filing Date") the completion Company shall prepare and file with the Commission a "shelf" Registration Statement covering the resale of all Registrable Shares for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Shares on Form S-3, in which case such registration shall be on another appropriate form in accordance with the Securities Act). The Company shall use commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof, but in any event no later than sixty (60) days after the filing of the distribution of Registration Statement, and shall use commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the date which is two years after the date that such Registration Statement is declared effective by the Commission or such earlier date when all Registrable Shares covered by such Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed to and reasonably acceptable to the Company's transfer agent and @Track (together, the "Effectiveness Period"); provided, that the Company shall not be deemed to have used commercially reasonable efforts to keep the Registration Statement effective during the Effectiveness Period if it voluntarily takes any action that would result in @Track not being able to sell the Registrable Shares covered by the Shelf such Registration Statement in accordance with and pursuant thereto during the intended methods of distribution by the Holders of the Registrable Shares as set forth in the Shelf Registration StatementEffectiveness Period, and unless such action is (Bx) required under applicable law, (y) taken pursuant to Section 2.6 hereof, or (z) the date upon which Company has filed a post-effective amendment to the Registrable Shares covered by the Shelf Registration Statement become eligible for resale pursuant to Rule 144 under and the Securities Act (the "Required Effectiveness Period")Commission has not declared it effective.
(b) The Company initial Registration Statement required to be filed hereunder shall include (but not be limited to) and cover a number of shares of Common Stock equal to no less than 200% of the number of shares of Common Stock issuable upon conversion in full of the outstanding Series A Preferred Stock pursuant to the designations and terms thereof, assuming for such purposes that such conversion occurred either on: (i) notify each Holder the date of the proposed filing Closing (as defined in the Shelf Registration Statement with Asset Purchase Agreement); or (ii) the SEC at least 30 days prior to the proposed filing date of the Shelf initial Registration Statement and referred to in Section 2.1(a) above, whichever yields the lowest Conversion Price (ii) afford each Holder with the opportunity to include all or any part of the Registrable Shares then owned by such Holder as defined in the Shelf Registration StatementCertificate of Designation).
(c) In order to exercise a Holder's right to include all or any part of the Registrable Shares then owned by them, such Holder shall If: (i) notify a Registration Statement is not filed on or prior to the Required Filing Date (or if the Company files such Registration Statement without affording @Track and its counsel the opportunity to review and comment on the same as required by Section 2.2(a) hereof); or (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to sixty (60) days after the filing of the number of Required Filing Date; or (iii) after a Registration Statement is filed with and declared effective by the Commission, such Registration Statement ceases to be effective as to all Registrable Shares such Holder wishes at any time prior to include in the Shelf Registration Statement and complete and sign expiration of the selling stockholder questionnaire included in the notice described in Section 2(b) hereof Effectiveness Period without being succeeded within twenty (20) days after by an amendment to such Registration Statement or by a subsequent Registration Statement filed with and declared effective by the Commission; or (iv) the conversion rights of @Track pursuant to the Certificate of Designation are suspended for any reason; or (v) an amendment to a Registration Statement is not filed by the Company gives with the Commission within twenty (20) days of the Commission's notifying the Company that such notice amendment is required in accordance with Section 10(a) hereoforder for such Registration Statement to be declared effective (any such failure or breach being referred to herein as an "Event," and for purposes of clauses (i), and (ii) furnish and (iv) the date on which such Event occurs, (iii) and (v) the date which such twenty (20) day period is exceeded, being referred to the Company as "Event Date"), then, on each such information as Event Date, the Company shall reasonably requestowe and pay to @Track an amount in cash (via wire transfer in immediately available funds) as liquidated damages for the estimated cost to @Track of not having liquid securities in the time contemplated by the Transaction Documents and not as penalty, includingan amount equal to the Prime Rate charged by Bank of America, but not limited to such Holder's proposed method of distribution N.A., plus 3%, per annum of the Registrable Sharesaggregate Liquidation Preference for all shares of Series A Preferred Stock issued and outstanding to @Track on each monthly anniversary thereof until the applicable Event is terminated or otherwise cured. If the Company fails to pay any liquidated damages pursuant to this Section in full within five (5) days after each monthly anniversary date payable as provided herein, the Company shall pay interest thereon at a rate of 18% per annum (or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled such lesser maximum amount that is permitted to be named as a selling stockholder paid by applicable law) to @Track, accruing daily from each date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in the Shelf Registration Statement or use the Prospectus forming a part thereof unless such Holder complies with this Section 2(c).
(d) If any Holders propose to distribute their Registrable Shares full. The liquidated damages pursuant to the Shelf Registration Statement terms hereof shall apply on a pro-rata basis for any portion of a month prior to the cure of an Event. Interest shall be calculated on a 365, or, if applicable, 366 day year. A "monthly anniversary date" as used herein shall mean the date(s) that is thirty (30) days from and after the last occurring Event Date monthly anniversary or the date, as applicable. Notwithstanding anything in an underwritten offering in which this Agreement to the anticipated aggregate offering price of their Registrable Shares is at least $10 million (a "Qualified Secondary Underwritten Offering")contrary, the Company agrees shall not be obligated to use make any payment to @Track pursuant to this Section 2.1(c) as a result of the Company exercising any of its reasonable best efforts rights pursuant to effect the registration Section 2.6 hereunder and the sale Company's obligations hereunder shall be tolled for an equivalent period of the Registrable Shares pursuant to one (1) Qualified Secondary Underwritten Offering, and pursuant thereto the Company shall comply with the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) of Section 5(a)time.
Appears in 1 contract
Samples: Asset Purchase Agreement (At Track Communications Inc)
Required Shelf Registration. (ai) Following The Company agrees that, as promptly as practical after the Eligibility Datetermination of the Merger Agreement, and in any event no later than 90 days thereafter, after the date on which the Merger Agreement is terminated, the Company shall use its reasonable best efforts to:
(i) to prepare and file with the Commission a "shelf" Registration Statement on Form S-1 or Form S-3 for an offering to be made on a continuous basis pursuant to Rule 415 (or any successor rule) (the "Shelf Registration Statement") covering all of the Registrable ---------------------------- Securities. The Company will use its reasonable best efforts to have such Shelf Registration Statement declared effective by the SEC on or as soon as practicable after the date hereof. The Company shall use its reasonable best efforts to keep the Shelf Registration Statement with the SEC as soon as reasonably practicable but no later than the date that is 60 days after the Eligibility Date; and
(ii) maintain the effectiveness of the Shelf Registration Statement continuously effective until the later to occur of: earlier of (A) the completion of the distribution of the Registrable Shares covered by the Shelf Registration Statement in accordance with the intended methods of distribution by date the Holders can sell all their shares of the Registrable Shares as set forth in the Shelf Registration Statement, Securities without any restrictions under Rule 144 and (B) the date upon on which no Registrable Securities remain outstanding. In the event the Company has complied with this Section by using a Form S-3 and becomes ineligible to use such Form, it shall use its reasonable best efforts to substitute therefor, as soon as practicable, a Form S-1 covering the Registrable Shares covered by Securities.
(ii) If the Company shall at any time receive a request in writing (a "Shelf Request") from Parent, or from any Holder or Holders holding a minimum of ------------- 10% of the Registrable Securities then outstanding (but in no event less than 200,000 shares (which number shall be adjusted in accordance with all splits, pro rata stock dividends or reclassifications of the Common Stock)) requesting an Underwritten Offering of Registrable Securities under the Shelf Registration Statement become eligible for resale pursuant to Rule 144 under that has anticipated aggregate proceeds at the Securities Act (the "Required Effectiveness Period").
(b) The Company shall (i) notify each Holder time of the proposed filing the Shelf Registration Statement with the SEC at least 30 days prior to the proposed filing date request (net of the Shelf Registration Statement underwriting discounts, commissions and (iiexpenses) afford each Holder with the opportunity to include all or any part in excess of the Registrable Shares then owned by such Holder in the Shelf Registration Statement.
(c) In order to exercise a Holder's right to include all or any part of the Registrable Shares then owned by them, such Holder shall (i) notify the Company of the number of Registrable Shares such Holder wishes to include in the Shelf Registration Statement and complete and sign the selling stockholder questionnaire included in the notice described in Section 2(b) hereof within twenty (20) days after the Company gives such notice in accordance with Section 10(a) hereof, and (ii) furnish to the Company such information as the Company shall reasonably request, including, but not limited to such Holder's proposed method of distribution of the Registrable Shares, or as may be required to effect the registration of the Registrable Shares. No Holder shall be entitled to be named as a selling stockholder in the Shelf Registration Statement or use the Prospectus forming a part thereof unless such Holder complies with this Section 2(c).
(d) If any Holders propose to distribute their Registrable Shares pursuant to the Shelf Registration Statement in an underwritten offering in which the anticipated aggregate offering price of their Registrable Shares is at least $10 2 million (a "Qualified Secondary Underwritten OfferingRequired Shelf -------------- Registration"), the Company agrees shall, subject to the terms and conditions hereof, ------------ be obligated to use its reasonable best efforts to effect facilitate such proposed Underwritten Offering pursuant to the registration and terms of this Agreement.
(iii) Following receipt of a Shelf Request, the sale Company shall promptly, but in no event later than the fifth business day following receipt of such Shelf Request, give a Notice of Offering to all Holders (other than the Holder or Holders that made the Shelf Request), which shall set forth the right of such Holders to include any or all shares of Registrable Securities held by such Holders in the proposed offering, subject to the terms of this Agreement.
(iv) If at any time any of the Holders of the Registrable Shares Securities covered by the Shelf Registration Statement desire to sell Registrable Securities in an Underwritten Offering (which for the purposes of this Agreement shall not be deemed to include block trades) in accordance with the limitations of this Section 2(b)(iv), the investment banker or investment bankers that will manage the offering will be nationally recognized underwriters selected jointly by the Company, the Holder initiating such underwritten offering and the Holders owning a majority of the Registrable Securities held by Holders included in such offering.
(v) If a Required Shelf Registration pursuant to one (1this Section 2(b) Qualified Secondary involves an Underwritten Offering, and pursuant thereto the sole Underwriter or the lead managing Underwriter, as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy to each Holder requesting registration) on or before the date 5 days prior to the date then scheduled for such offering that, in its opinion, the amount of Registrable Securities requested to be included in such Required Shelf Registration exceeds the amount which can be sold in such offering without adversely affecting the distribution of the Registrable Securities being offered, the Company will include in such Required Shelf Registration only the amount of Registrable Securities that the Company is so advised can be sold in such offering; provided, however, that the Company shall comply be required to include in such Required Shelf Registration first, all Registrable Securities requested to be included in the Required Shelf Registration by the Holders and, to the extent not all such Registrable Securities can be included in such Required Shelf Registration, the number of Registrable Securities to be included shall be allocated pro rata on the basis of the number of shares of Common Stock beneficially owned at that time by all the Holders requesting to participate in the Required Shelf Registration or on such other basis as shall be agreed among the Holders, by agreement of the Majority Holders; and second, if all Registrable Securities requested to be included in the Required Shelf Registration by the Holders can be so included, all other securities requesting, in accordance with any registration rights which are granted in compliance with Section 6(a) of this Agreement, to be included in such Required Shelf Registration which are of the same class as the Registrable Securities and, to the extent not all such securities can be included in such Required Shelf Registration, the number of securities to be included shall be allocated pro rata among the holders thereof requesting inclusion in such Required Shelf Registration on the basis of the number of securities requested to be included by all such Holders.
(vi) A Shelf Request may be withdrawn prior to the filing of the Shelf Registration Statement by Parent where Parent made such Request (a "Withdrawn Shelf Request"), and a Required Shelf Registration Statement may be ----------------------- withdrawn prior to the effectiveness thereof by the Holders of a majority of the Registrable Securities included therein (a "Withdrawn Required Shelf ------------------------ Registration"), and, in either such event, such withdrawal shall not be treated ------------ as a Required Registration or a Required Shelf Registration for purposes of Section 2(a)(v).
(vii) The registration rights granted pursuant to the provisions of this Section 2(b) shall be in addition to the registration procedures set forth in paragraphs (vi), (vii), (x) and (xii) rights granted pursuant to the other provisions of this Section 5(a)2.
Appears in 1 contract
