Shelf Registration Procedures. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall: (i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction; (ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective (subject to any suspension period(s)) pursuant to Rule 415 until the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered by the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (the “Required Period”); and (iii) use its reasonable best efforts to cause the resale prospectus to be supplemented by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effected.
Appears in 5 contracts
Samples: Stock Purchase Agreement (PSM Holdings Inc), Stock Purchase Agreement (PSM Holdings Inc), Stock Purchase Agreement (PSM Holdings Inc)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject pursuant to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC SEC, within the time period set forth in Section 2(a) hereof, a Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by the selling Holders thereof and (ii) shall comply as to form in all material respects with the requirements of the applicable form.
(b) subject to the last three sentences of this Section 3(b) and to Section 3(i) hereof, (i) prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective for the applicable period; (subject ii) cause each Prospectus to be supplemented by any suspension period(s)) required prospectus supplement, and as so supplemented to be filed pursuant to Rule 415 424 or any similar rule that may be adopted under the Securities Act, (iii) respond promptly to any comments received from the Commission with respect to the Shelf Registration Statement, or any amendment, post-effective amendment or supplement relating thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in clauses (i), (ii) or (iii) above with respect to each particular Holder of Registrable Securities unless and until the earlier Company has received either a written notice (a "Registration Notice") from a Holder that such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Registration Notice or a written response from such Holder of the type contemplated by Section 2(b); provided, however, that the Company shall have 7 business days to prepare and file any such amendment or supplement after receipt of a Registration Notice. Once a Holder has delivered such a written response or a Registration Notice to the Company, such Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify such Holder and the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to a Prospectus. Unless otherwise approved in writing by the Company in its sole discretion, offers or sales under the Shelf Registration Statement may be made only during a Sale Period. Such Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holder no longer intends to make offers or sales under the Shelf Registration Statement.
(Ac) furnish to each Holder of Registrable Securities that has delivered a Registration Notice to the Company, without charge, as many copies of each applicable Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of such Prospectus, including each preliminary Prospectus, by each such Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by such Prospectus or the preliminary Prospectus.
(d) use its reasonable best efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or "blue sky" laws of such jurisdictions as any Holder of Registrable Securities covered by the Shelf Registration Statement shall reasonably request in writing, keep each such registration or qualification effective during the period the Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by a Holder that has delivered a Registration Notice to the Company, whichever is shorter, and do any and all other acts and things may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder, provided, however, that the Company not be required (i) to qualify generally to do business in any jurisdiction or to register as a broker or dealer in such jurisdiction where it would not be required so to qualify or register but for this Section 3(d), (ii) to subject itself to taxation in any such jurisdiction or (iii) to submit to the general service of process in any such jurisdiction.
(e) notify each Holder when the shelf Registration Statement has become effective and notify each Holder that has delivered a Registration Notice to the Company promptly and, if requested by such Holder, confirm such advice in writing (i) when any post-effective amendments and supplements to the Shelf Registration Statement become effective, (ii) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose, (iii) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose and (iv) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which the Shelf Registration Statement or a related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement at the carried possible moment.
(g) furnish to each Holder that has delivered a Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested).
(h) cooperate with the selling Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such names as the selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities.
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by Section 3(e)(iv) hereof, use its reasonable best efforts promptly to prepare and file a supplement or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement or a related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) make available for inspection by representatives of the selling Holders and any counsel or accountant retained by such Holders, all financial and other records, pertinent corporate documents and properties of the Company, and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, counsel or accountant in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies such representatives, counsel or accountants in writing that such records, documents or information are confidential, shall not be disclosed by the representatives, counsel or accountants unless (i) the disclosure of such records, documents or information is necessary to avoid or correct a material misstatement or omission in the Shelf Registration Statement, (ii) the release of such records, documents or information is ordered pursuant to a subpoena or outer order from a court of competent jurisdiction or (iii) such records, documents or information have been generally made available to the public otherwise than in violation of this Agreement.
(k) within a reasonable time prior to the filing of any Prospectus, any amendment to the Shelf Registration Statement or amendment or supplement to a Prospectus, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holders of Registrable Securities that have provided a Registration Notice to the Company.
(l) use its reasonable best efforts to cause all Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed.
(m) obtain a CUSIP number for all Registrable Securities, not later than the effective date of the Shelf Registration Statement.
(n) otherwise use its 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 at least 12 months which shall satisfy the provisions of which Holder may sell all Section 11(a) of the Securities Act and Rule 158 thereunder.
(o) use its reasonable best efforts to cause the Registrable Securities covered by the Shelf Registration Statement without restriction to be registered with or limitation approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable Holders that have delivered Registration Notices to the Company to consummate the disposition of such Registrable Securities. The Company may require each Holder to furnish to the Company in writing such information regarding the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Rule 144 Section 2 hereof and without the requirement to be in compliance with Rule 144(c)(1this Section 3, each Holder agrees that (i) (it will not offer or any successor thereto) promulgated sell its Registrable Securities under the 1933 Act Shelf Registration Statement until (A) it has either (1) provided a Registration Notice pursuant to Section 3(b) hereof or (2) had Registrable Securities included in the Shelf Registration Statement at the time it became effective pursuant to Section 2(b) hereof and (B) the date on which Holder shall have sold all it has received copies of the Registrable Securities covered supplemented or amended Prospectus contemplated by such Shelf Registration Statement (the “Required Period”); and
(iiiSection 3(b) use its reasonable best efforts to cause the resale prospectus to be supplemented by hereof and receives notice that any required prospectus supplementpost-effective amendment has become effective; provided(ii) upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(e)(iv) hereof, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering such Holder will forthwith discontinue disposition of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes until such Holder receives copies of the supplemented or amended Prospectus contemplated by Section 3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, 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; and (iii) all offers and sales under the Shelf Registration Statement shall be completed during the first available Sale Period when offers or sales can be made pursuant to clause (i) above, and upon expiration of such Sale Period the Holder will not offer or sell its Registrable Securities under the Shelf Registration Statement until it has again complied with the provisions of clauses (i)(A)(1) and (B) above, provided, however, that if the entirety of a Sale Period is for any reason not available to the Holder, the Holder shall also be deemed not entitled to have been effectedmake offers and sales during the next succeeding Sale Period.
Appears in 4 contracts
Samples: Registration Rights Agreement (Corporate Office Properties Trust), Registration Rights Agreement (Corporate Office Properties Trust), Registration Rights Agreement (Corporate Office Properties Trust)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject pursuant to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC SEC, within the time period set forth in Section 2(a) hereof, a Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distril4ion by the selling Holders thereof and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith.
(b) subject to the last three sentences of this Section 3(b) and to Section 3(i) hereof, (i) prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective for the applicable period; (subject ii) cause each Prospectus to be supplemented by any suspension period(s)) required prospectus supplement, and as so supplemented to be filed pursuant to Rule 415 424 or any similar rule that may be adopted under the Securities Act; (iii) respond promptly to any comments received from the Commission with respect to the Shelf Registration Statement, or any amendment, post-effective amendment or supplement relating thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in clauses (i), (ii) or (iii) above with respect to each particular Holder of Registrable Securities unless and until the earlier Company has received either a written notice (a "Registration Notice") from a Holder that such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Registration Notice or a written response from such Holder of the type contemplated by Section 2(b); provided, however, that the Company shall have 7 business days to prepare and file any such amendment or supplement after receipt of a Registration Notice. Once a Holder has delivered such a written response or a Registration Notice to the Company, such Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify such Holder and the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to a Prospectus. Offers or sales under the Shelf Registration Statement may be made only during a Sale Period. Such Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holder no longer intends to make offers or sales under the Shelf Registration Statement.
(Ac) furnish to each Holder of Registrable Securities that has delivered a Registration Notice to the Company, without charge, as many copies of each applicable Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of such Prospectus, including each preliminary Prospectus, by each such Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by such Prospectus or the preliminary Prospectus.
(d) use its reasonable best efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or "blue sky" laws of such jurisdictions as any Holder of Registrable Securities covered by the Shelf Registration Statement shall reasonably request in writing, keep each such registration or qualification effective during the period the Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by a Holder that has delivered a Registration Notice to the Company, whichever is shorter, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; provided, however, that the Company shall not be required (i) to qualify generally to do business in any jurisdiction or to register as a broker or dealer in such jurisdiction where it would not be required so to qualify or register but for this Section 3(d), (ii) to subject itself to taxation in any such jurisdiction or (iii) to submit to the general service of process in any such jurisdiction.
(e) notify each Holder when the Shelf Registration Statement has become effective and notify each Holder of Registrable Securities that has delivered a Registration Notice to the Company promptly and, if requested by such Holder, confirm such advice in writing (i) when any post-effective amendments and supplements to the Shelf Registration Statement become effective, (ii) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose, (iii) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose and (iv) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which the Shelf Registration Statement or a related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement at the earliest possible moment.
(g) furnish to each Holder of Registrable Securities that has delivered a Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested).
(h) cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such names as the selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities.
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by Section 3(e)(iv) hereof, use its reasonable best efforts promptly to prepare and file a supplement or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement or a related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) make available for inspection by representatives of the Holders of the Registrable Securities and any counsel or accountant retained by such Holders, all financial and other records, pertinent corporate documents and properties of the Company, and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, counsel or accountant in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential, and notifies such representatives, counsel or accountants in writing that such records, documents or information are confidential, shall not be disclosed by the representatives, counsel or accountants unless (i) the disclosure of such records, documents or information is necessary to avoid or correct a material misstatement or omission in the Shelf Registration Statement, (ii) the release of such records, documents or information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) such records, documents or information have been generally made available to the public otherwise than in violation of this Agreement.
(k) a reasonable time prior to the filing of any Prospectus, any amendment to the Shelf Registration Statement or amendment or supplement to a Prospectus, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holders of Registrable Securities that have provided a Registration Notice to the Company.
(l) use its reasonable best efforts to cause all Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed.
(m) obtain a CUSIP number for all Registrable Securities, not later than the effective date of the Shelf Registration Statement.
(n) otherwise use its 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 at least 12 months which shall satisfy the provisions of which Holder may sell all Section 11(a) of the Securities Act and Rule 158 thereunder.
(o) use its reasonable best efforts to cause the Registrable Securities covered by the Shelf Registration Statement without restriction to be registered with or limitation approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable Holders that have delivered Registration Notices to the Company to consummate the disposition of such Registrable Securities. The Company may require each Holder of Registrable Securities to furnish to the Company in writing such information regarding the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Rule 144 Section 2 hereof and without the requirement to be in compliance with Rule 144(c)(1this Section 3, each Holder agrees that (i) (it will not offer or any successor thereto) promulgated sell its Registrable Securities under the 1933 Act Shelf Registration Statement until (A) it has either (1) provided a Registration Notice pursuant to Section 3(b) hereof or (2) had Registrable Securities included in the Shelf Registration Statement at the time it became effective pursuant to Section 2(b) hereof and (B) the date on which Holder shall have sold all it has received copies of the Registrable Securities covered supplemented or amended Prospectus contemplated by Section 3(b) hereof and receives notice that any post-effective amendment has become effective; (ii) upon receipt of any notice from the Company of the happening of anv event of the kind described in Section 3(b)(iv) hereof, such Shelf Registration Statement (the “Required Period”); and
(iii) use its reasonable best efforts to cause the resale prospectus to be supplemented by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering Holder will forthwith discontinue disposition of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes until such Holder receives copies of the supplemented or amended Prospectus contemplated by Section 3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, 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; and (iii) all offers and sales under the Shelf Registration statement shall be completed within forty-five (45) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such forty-five (45) day period the Holder will not offer or sell its Registrable Securities under the Shelf Registration Statement will until it has again complied with the provisions of clauses (i)(A)(1) and (B) above, except that if the applicable Registration Notice was delivered to the Company at a time which was not part of a Sale Period, such forty-five (45) day period shall be deemed not to have been effectedthe next succeeding Sale Period.
Appears in 3 contracts
Samples: Registration Rights Agreement (Royale Investments Inc), Registration Rights Agreement (Shidler Jay H), Registration Rights Agreement (Hamlin Clay W Iii)
Shelf Registration Procedures. The (i) If at any time the Shelf Registration ceases to be effective, then the Company shall use its best efforts to have file and use its commercially reasonable efforts to cause to become effective a new “evergreen” shelf registration statement as promptly as practicable.
(ii) If, after the Shelf Registration Statement declared effective by has become effective, any stop order, injunction or other order or requirement of the SEC Commission or other governmental agency or authority is threatened, then the Company shall use its commercially reasonable efforts to prevent the issuance of any order suspending the effectiveness of the Shelf Registration or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order as soon as reasonably practicable, but in no event later than the date which is: .
(i) The Company may at any time furnish to the holders of Registrable Securities a certificate signed by its chairman of the board, president, chief executive officer, chief financial officer or general counsel (a “Suspension Notice”) stating that in his or her good faith judgment following consultation with the Company’s outside securities counsel, the filing of an amendment or supplement to the Shelf Registration or a document incorporated by reference therein is necessary in order to ensure that the Shelf Registration conforms in all material respects to the requirements of the Securities Act and does 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 not misleading. Except to the extent required by law, each holder of Registrable Securities shall keep confidential and not disclose the fact that it has received a Suspension Notice; the Company agrees that any such Suspension Notice shall provide only that a suspension is in effect and shall not include any material non-public information regarding the cause for the issuance of such Suspension Notice. Upon receipt of a Suspension Notice, each holder of Registrable Securities receiving such notice shall immediately cease selling Registrable Securities pursuant to the Shelf Registration and shall discontinue use of any prospectus contained in the Shelf Registration until such holder of Registrable Securities has received written notice from the Company pursuant to Section 1(c)(iv) that the Suspension Notice is no longer in effect.
(ii) If at any time prior to the initial filing of a Shelf Registration the Company shall furnish a Suspension Notice to the holders of Registrable Securities pursuant to Section 1(c)(i), the Company may postpone the filing (but not the preparation) of the Shelf Registration for not more than 45 days upon prior notice of such postponement to the applicable holders of Registrable Securities; provided, however, that the Company shall not be permitted to postpone registration pursuant to this clause (c)(ii) more than once with respect to any Shelf Registration.
(iii) Following the effectiveness of the Shelf Registration, the Company shall be obligated to deliver to the holders of Registrable Securities with Shares registered thereunder a Suspension Notice immediately upon discovery by the Company of any condition of the type specified in Section 1(c)(i). The Company shall use commercially reasonable efforts to supplement and amend, if necessary, as promptly as practicable the Shelf Registration such that the Shelf Registration, as amended or supplemented, conforms in all material respects to the requirements of the Securities Act and does 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 not misleading; provided, however, that the Company shall not be obligated to supplement or amend the Shelf Registration if the Registration Statement is not subject to board of directors of the Company determines in good faith following consultation with the Company’s outside securities counsel that the Company has pending or in process a full review material transaction, the disclosure of which would materially and adversely affect the Company or the market for its securities, or the Company has undisclosed material information that the Company has a bona fide business purpose for preserving as confidential and which in each case would be required by the SECsecurities laws to be disclosed in the Shelf Registration; provided, sixty further, that (60i) calendar the Company shall be entitled to exercise such right pursuant to the foregoing proviso no more than twice in any period of 12 consecutive months and for no more than 90 days after in any period of 12 consecutive months and (ii) the Company shall not be entitled to exercise such right during the 60 days following the effective date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall:Registration.
(iiv) file with The Company shall be obligated to promptly notify the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part holders of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments to the Shares registered under a Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective (subject to any suspension period(s)) pursuant to Rule 415 until the earlier of in writing once (A) the date as of which Holder may sell all of the Registrable Securities covered Shelf Registration has been supplemented or amended, including by the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without filing of a document incorporated therein by reference, in a manner that has corrected the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under condition that was the 1933 Act subject of such Suspension Notice or (B) the date on which Holder shall have sold all Suspension Notice is otherwise no longer in effect due to the cessation of the Registrable Securities covered by condition that was the subject of such Shelf Registration Statement (the “Required Period”); and
(iii) use its reasonable best efforts to cause the resale prospectus to be supplemented by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedSuspension Notice.
Appears in 3 contracts
Samples: Registration Rights Agreement (Terra Industries Inc), Registration Rights Agreement (Terra Industries Inc), Registration Rights Agreement (Anglo American PLC)
Shelf Registration Procedures. In connection with any Shelf Registration contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Purchaser, prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, the Company shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as the Purchaser reasonably may propose and (ii) include the names of the Holders, who propose to sell Transfer Restricted Securities pursuant to the Shelf Registration Statement, as selling securityholders; PROVIDED, THAT the Purchaser and Holders have complied with Section 1(d).
(b) The Company shall give written notice to the Registration Statement declared effective by Purchaser and the SEC as soon as practicable, but in no event later than Holders of the date which is: (i) if Transfer Restricted Securities included within the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date coverage of the Shelf Request, or (ii) if the Registration Statement is subject (which notice pursuant to a full review clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the SEC, ninety (90) calendar days after the date use of the Shelf Request (prospectus until the “Shelf Filing Deadline”). Further, the Company shall:requisite changes have been made):
(i) file when the Shelf Registration Statement or any amendment thereto has been filed with the SEC in accordance with Rule 424 under Commission and when the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement or any post-effective amendment thereto has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbecome effective;
(ii) use its reasonable best efforts to prepare and file with of any request by the SEC such Commission for amendments and post-effective amendments or supplements to the Shelf Registration Statement as may be necessary to keep or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement continuously or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Transfer Restricted Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading, which written notice need not provide any detail as to the nature of such event.
(c) The Company shall make every commercially reasonable effort to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to each Holder of Transfer Restricted Securities included within the coverage of such Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to any suspension period(s)) pursuant the provisions of this Agreement, to Rule 415 until the earlier of (A) the date as of which Holder may sell all use of the Registrable prospectus or any amendment or supplement thereto by each of the selling Holders of the Transfer Restricted Securities in connection with the offering and sale of the Transfer Restricted Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement without restriction or limitation Statement.
(f) Prior to any public offering of the Securities pursuant to Rule 144 the Shelf Registration Statement, the Company shall register or qualify or cooperate with the Holders of the Securities included therein and without their respective counsel in connection with the requirement to be in compliance with Rule 144(c)(1) (registration or any successor thereto) promulgated qualification of the Transfer Restricted Securities for offer and sale under the 1933 Act securities or (B) the date on which Holder shall have sold all "blue sky" laws of such states of the Registrable United States as any Holder of the Securities reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Shelf Registration Statement Statement; PROVIDED, HOWEVER, that the Company shall not be required to (the “Required Period”); andi) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(iiig) use its reasonable best efforts The Company shall cooperate with the Holders of the Securities to cause facilitate the resale prospectus timely preparation and delivery of certificates representing the Securities to be supplemented sold pursuant to the Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Securities pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 2(b) above during the period for which the Company is required to maintain an effective Shelf Registration Statement, the Company shall as required hereby prepare and file a post-effective amendment to such Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Securities or purchasers of Securities included within the coverage of such Shelf Registration Statement, the prospectus supplementwill 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; PROVIDED, HOWEVER, that the Company may delay filing and distributing any such supplement or amendment (and continue the suspension of the use of the related prospectus) if the Company determines in good faith that such supplement or amendment would, in the reasonable judgement of the Company, (i) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company or (ii) involve initial or continuing disclosure obligations that are not in the best interests of the Company's stockholders at such time; provided, further, that neither such delay nor such suspension shall extend for a registration period of more than 90 consecutive days or an aggregate of 180 days in any twelve-month period. If the Company notifies the Purchaser and the Holders of the Securities in accordance with paragraphs (ii) through (v) of Section 2(b) above to suspend the use of such prospectus until the requisite changes to such prospectus have been made, then the Purchaser and the Holders of the Securities shall suspend use of such prospectus, and the period of effectiveness of such Shelf Registration Statement provided for in Section 1(b) above shall be extended by the number of days from and including the date of the giving of such notice to and including the date when the Purchaser and the Holders of the Securities shall have received such amended or supplemented prospectus pursuant to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration Statement, the Company will provide CUSIP numbers for the Notes and the Conversion Shares registered under the Shelf Registration Statement and provide the Trustee with a certificate for the Notes, in a form eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration to enable the Holders to resell their securities in accordance with this Agreement.
(k) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(l) Each Holder agrees, by acquisition of the Securities, that no Holder of Securities shall be entitled to sell any of such Securities pursuant to any Shelf Registration Statement or to receive a prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to and in accordance with Section 1(d) hereof and the information set forth in the next sentence. Each Holder agrees promptly to furnish the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not misleading and any other information regarding such Holder and the distribution of such Securities as the Company may from time to time reasonably request.
(m) In the event of any underwritten public offering, the Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as any managing underwriter of such offering and Holder of the Securities shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration; PROVIDED, HOWEVER, that the Company shall not be required to facilitate an underwritten offering pursuant to a Shelf Registration Statement by any Holders unless the offering relates to at least $20,000,000 principal amount of the Notes or an equivalent number of Conversion Shares (as adjusted for any stock dividends, stock splits and capital changes).
(n) The Company shall not (i) make reasonably available for inspection by any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any agent retained by any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by any such underwriter or agent in connection with the Shelf Registration Statement, in each case, as shall be deemed reasonably necessary to have been effected unless it has been declared effective by enable such persons, to conduct a reasonable investigation within the SEC and has remained effective for meaning of Section 11 of the Required PeriodSecurities Act; further providedPROVIDED, HOWEVER, that if the foregoing inspection and information gathering shall be coordinated on behalf of the Purchaser by you and the other parties, by one firm of counsel, which firm shall be designated as described in Section 6 hereof.
(o) In the event of an offering underwritten offering, the Company shall cause (i) its counsel to deliver an opinion and updates thereof relating to the Securities in customary form and substance addressed to the managing underwriters thereof and dated, in the case of Registrable the initial opinion, the effective date of such Shelf Registration Statement; (ii) its executive officers and directors to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Securities pursuant and (iii) the independent public accountants for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Transfer Restricted Securities and any underwriter therefor a comfort letter in customary form, type and substance customarily covered in comfort letters in connection with primary underwritten offerings.
(p) The Company shall use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities covered by a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Citigroup Inc), Purchase Agreement (Citigroup Inc)
Shelf Registration Procedures. The Company shall use its best efforts In connection with the Company’s registration obligations hereunder with respect to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherStatement, the Company shall:
(a) Not less than ten (10) Trading Days prior to the filing of the Shelf Registration Statement or any related prospectus (“Prospectus”) or any amendment or supplement thereto, the Company shall (i) file with furnish to the SEC in accordance with Rule 424 under the 1933 Act the final prospectus Investor and its counsel (“Investor Counsel”) copies of such documents proposed to be used in connection with sales pursuant filed, which documents will be subject to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sellreview of Investor and Investor Counsel, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
and (ii) use cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable best efforts opinion of respective counsel, to prepare conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file such Shelf Registration Statement or any related Prospectus, amendments or supplements thereto to which the Investor and Investor Counsel shall reasonably object.
(i) Prepare and file with the SEC such amendments and amendments, including post-effective amendments amendments, to the Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Shelf Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period; (subject ii) cause the related Prospectus to be amended or supplemented by any suspension period(s)) required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 415 until 424 under the earlier Securities Act; (iii) respond as promptly as reasonably possible, and in any event within twenty (20) Trading Days, to any comments received from the Commission with respect to the Shelf Registration Statement or any amendment thereto and promptly thereafter provide copies of such response to the Investor; and (Aiv) comply in all material respects with the date as of which Holder may sell all provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Shelf Registration Statement without restriction during the applicable period in accordance with the intended methods of disposition by the Investor set forth in the Shelf Registration Statement as so amended or limitation pursuant in such Prospectus as so supplemented.
(c) Notify the Investor within three (3) Trading Days of receipt, and if requested by the Investor, confirm such notice in writing within three (3) Trading Days thereafter, of any of the following events: (i) the Commission notifies the Company of whether it plans to Rule 144 “review” the Registration Statement; (ii) the Commission comments in writing on the Registration Statement (in which case the Company shall deliver to the Investor a true and without complete copy of such comments within three (3) Trading Days of receipt, a timeline relating to the requirement proposed drafting of responses within six (6) Trading Days of receipt and of all such written responses); (iii) the Registration Statement or any post-effective amendment thereto is declared effective; (iv) the Commission or any other Federal or state governmental authority requests any amendment or supplement to the Registration Statement or Prospectus or requests additional information related thereto; (v) the Commission issues any stop order suspending the effectiveness of the Registration Statement or if the Company receives notice that the Commission initiates any Proceedings for that purpose; (vi) 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; or (vii) the financial statements included in the Registration Statement become ineligible for inclusion therein or any statement made in the Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in compliance with Rule 144(c)(1any material respect or any revision to the Registration Statement, related Prospectus or other document is required so that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in 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 successor of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) Furnish to the Investor and Investor Counsel, without charge, copies of the Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent and in such quantity as requested by such Person (excluding those previously furnished or incorporated by reference) promulgated under within three (3) Trading Days after the 1933 Act filing of such documents with the Commission.
(f) Promptly upon request, deliver to the Investor and Investor Counsel without charge, as many copies of the Prospectus or Prospectuses (Bincluding each form of prospectus) related to the date on which Holder shall have sold all Registration Statement 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 Investor in connection with the offering and sale of the Registrable Securities covered by such Shelf Registration Statement Prospectus and any amendment or supplement thereto. Furthermore, the Company hereby agrees that the Investor is permitted to use such Prospectuses including any amendment and each supplement thereto, if required for the purposes of any report or public announcements or disclosures to be submitted to, or made pursuant to the requirements of, any governmental or regulatory body in India/Cyprus/Netherlands (as the “Required Period”)case may be) and/or if required to comply with any law applicable to the Investor at the Investor’s expense and to the extent reasonably practicable.
(g) In the time and manner required by the Trading Market, if at all, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; and
(ii) take all steps necessary to cause such Registrable Securities to be approved for listing on the Trading Market as soon as reasonably practicable thereafter; (iii) use its reasonable best efforts to cause the resale prospectus extent available to be supplemented by the Company, provide to the Investor evidence of such listing; and (iv) maintain the listing of such Registrable Securities on each such Trading Market.
(h) Prior to any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an public offering of Registrable Securities pursuant to the Registration Statement, use its best efforts to register or qualify or cooperate with the Investor and Investor 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 Investor 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 Statement.
(i) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a Shelf transferee pursuant to the 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 Investor may request.
(j) Upon the occurrence of any event described in Section 2.5(c)(vii), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to such Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor its related Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) Cooperate with any due diligence investigation undertaken by the Investor in connection with the sale of Registrable Securities pursuant to the Registration Statement, including without limitation by making available any documents and information at the facilities of the Company during normal business hours and upon reasonable notice.
(l) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement with the underwriter(s), in usual and customary form, including, without limitation, by providing customary legal opinions, comfort letters and indemnification and contribution obligations.
(m) Comply with all applicable rules and regulations of the Commission.
(n) Notwithstanding the above, the Company may suspend the effectiveness of the Registration Statement, suspend the use of any Prospectus included therein, and shall not be required to amend or supplement the Registration Statement, any related Prospectus or any document incorporated therein by reference for a period of time not to exceed 60 consecutive days and in no event to exceed more than an aggregate of 90 days during any rolling 12-month period (the “Pending Event Suspension Period”), if (i) an event or circumstance occurs and is terminated continuing that has not been publicly disclosed and, if not disclosed in the Registration Statement, any related Prospectus or any document incorporated therein by reference as then amended or supplemented, would, in the Company’s good-faith judgment, after consultation with its outside securities counsel, result in the Registration Statement, any stop order, injunctionrelated Prospectus or any such document containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein, or other necessary in order to make the statements therein, in the light of the SEC circumstances under which they were made, not misleading and (ii) in the good faith judgment of the board of directors of the Company (the “Board”), after consultation with its outside securities counsel, the Company has a bona fide business purpose for not then disclosing the existence of such event or other governmental agency circumstance (only to the extent such event or court after circumstance is material non-public information). In the Shelf event of the occurrence of any Pending Event Suspension Period, the Company shall promptly upon such occurrence, notify the Investor in writing. The Company will also provide written notice to the Investor of the end of each Pending Event Suspension Period. The Investor agrees to cease all public disposition efforts under the Registration Statement becomes effective, with respect to the Shelf Registration Statement will be deemed not to have been effectedRegistrable Securities then held by the Investor immediately upon receipt of notice of the beginning of any Pending Event Suspension Period and until the Investor receives notice of the end of such Pending Event Suspension Period.
Appears in 2 contracts
Samples: Investor Rights Agreement (Kelisia Holdings LTD), Investor Rights Agreement (Pharmathene, Inc)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 3 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holders covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holders covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holders to the effect that the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed ninety (90) days from the date of such notice; provided, however, that the Company may deliver -------- ------- only two such notices within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holders that it intends to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business -------- ------- days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holders have delivered a Shelf Registration Notice to the Company, each Holder covered thereby shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post- effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Such Holders also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holders no longer intend to make offers or sales under the Shelf Registration Statement;
(c) after the Holders have delivered a Shelf Registration Notice to the Company, furnish each Holder covered thereby, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holders after they have delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in compliance connection therewith, the Company -------- ------- shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holders promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the “Required Period”Holders have delivered a Shelf Registration Notice to the Company, furnish to each Holder covered thereby, without charge, at least one conformed copy of the Shelf Registration Statement and any post- effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with each selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as each Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holders have provided a Shelf Registration Notice to the Company, make available for inspection by each Holder covered thereby and any counsel, accountants or other representatives retained by such Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by such Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the -------- ------- Company determines in good faith to be confidential and notifies such Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by such Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to each Holder covered thereby after the Holders have provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its reasonable best efforts to cause make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require each Holder to be supplemented furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that such Holder as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3 hereof and this Section 4, each Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 4(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 4(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 4(e); (ii) upon receipt of any notice from the Company contemplated by Section 4(b) or Section 4(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 4(e)), such Holder shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until such Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in such Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by such Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, such Holder will not be deemed to have been effected unless offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has been declared effective again complied with the provisions of clause (i) above; (iv) such Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC and has remained effective for the Required Period; further provided, that if an offering as applicable to them in connection with sales of Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; (v) such Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement Statement; and (vi) such Holder and any of its beneficial owners, officers, directors or affiliates, if any, will be deemed not enter into such written agreements as the Company shall reasonably request to have been effectedensure compliance with clause (iv) and (v) above.
Appears in 2 contracts
Samples: Registration Rights and Lock Up Agreement (Weeks Corp), Registration Rights and Lock Up Agreement (Weeks Corp)
Shelf Registration Procedures. In connection with the Shelf Registration contemplated by Section 1 hereof, the following provisions shall apply so long as any Transfer Restricted Security exists:
(a) The Company shall (i), if requested by the Initial Purchaser, furnish, without charge, to the Initial Purchaser, prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that the Initial Purchaser (with respect to any portion of an unsold allotment from the original offering) is participating in the Shelf Registration Statement, the Company shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as the Initial Purchaser reasonably may propose, (ii) include in each such document the names of the Holders who have delivered written notice, and a duly completed selling stockholder questionnaire in the Registration Statement declared effective by form attached as Annex A to the SEC as soon as practicable, but in no event later than Offering Circular (a "Questionnaire") to the Company at least five business days prior to the date which is: (i) if that the Shelf Registration Statement is not subject first declared effective, that they propose to include Transfer Restricted Securities in the Shelf Registration Statement as selling securityholders and (iii) file pursuant to Rule 424(b) under the Securities Act a full review supplement to the prospectus contained in the Shelf Registration Statement or, if required, file a post-effective amendment to the Shelf Registration Statement, in each case, to cover new Holders of Securities upon at least seven business days prior written notice by such new Holders to such effect and the SECdelivery by such new Holder of duly completed Questionnaires.
(b) The Company shall give written notice to the Initial Purchaser and, sixty (60) calendar days after through the date Company's transfer agent and registrar for the Convertible Preferred Stock and Common Stock, to the Holders of the Securities and the Holders of Transfer Restricted Securities included within the coverage of the Shelf Request, or (ii) if the Registration Statement is subject (which notice pursuant to a full review clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the SEC, ninety (90) calendar days after the date use of the Shelf Request (prospectus until the “Shelf Filing Deadline”). Further, the Company shall:requisite changes have been made):
(i) file when the Shelf Registration Statement or any amendment thereto has been filed with the SEC in accordance with Rule 424 under Commission and when the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement or any post-effective amendment thereto has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbecome effective;
(ii) use its reasonable best efforts to prepare and file with of any request by the SEC such Commission for amendments and post-effective amendments or supplements to the Shelf Registration Statement as may be necessary to keep or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement continuously or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus do not contain an untrue statement of a material fact nor 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.
(c) The Company shall make every reasonable effort to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Transfer Restricted Securities included within the coverage of the Shelf Registration Statement, without charge, if the Holder so requests in writing, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including, but only if expressly requested by such Holder, financial statements and schedules and all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to each Holder of Transfer Restricted Securities included within the coverage of the Shelf Registration Statement, without charge, as many copies of the prospectus (including each preliminary prospectus, if any) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any suspension period(s)amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Transfer Restricted Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to Rule 415 until the earlier of (A) Shelf Registration Statement, the date as of which Holder may sell all Company shall register, or qualify or cooperate with the Holders of the Registrable Transfer Restricted Securities included therein and their respective counsel in connection with the registration or qualification of, the Securities for offer and sale under the securities or "blue sky" laws of such states of the United States as any Holder reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by the Shelf Registration Statement without restriction Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or limitation (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Transfer Restricted Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to Rule 144 the Shelf Registration Statement free of any restrictive legends and without in such denominations and registered in such names as the requirement Holders may request a reasonable period of time prior to sales of the Securities pursuant to the Shelf Registration Statement, except in such cases where such Transfer Restricted Securities are required to be issued only in compliance book-entry form pursuant to the terms of the Certificate of Designations.
(h) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 2(b) above during the Shelf Registration Period, the Company shall promptly prepare and file a post-effective amendment to the Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Securities or purchasers of Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Initial Purchaser or the Holders of Transfer Restricted Securities included within the coverage of the Shelf Registration Statement to suspend the use of the prospectus as a result of any of the events described in paragraphs (ii) through (v) of Section 2(b) above or as a result of the filing of any post-effective amendment pursuant to Section 2(a)(iii), until the requisite changes to the prospectus have been made or the post-effective amendment has become effective, as the case may be, the Initial Purchaser and the Holders shall suspend use of such prospectus.
(i) [reserved]
(j) The Company will comply with Rule 144(c)(1) all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration and will make generally available to its security holders (or any successor theretootherwise provide in accordance with Section 11(a) promulgated under the 1933 Act or (B) the date on which Holder shall have sold all of the Registrable Securities Act) an earnings statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of a 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 of the Shelf Registration Statement, which statement shall cover such 12-month period.
(k) The Company may require each Holder of Securities to be sold pursuant to the Shelf Registration Statement to furnish to the Company, pursuant to the Questionnaire or otherwise, such information regarding the Holder and the distribution of the Securities as the Company may from time to time reasonably require for inclusion in the Shelf Registration Statement, and the Company may exclude from such registration the Securities of any Holder that fails to furnish such information within the applicable time period specified in Section 2(a) above.
(l) The Company shall enter into such customary agreements and take all such other action, if any, as any Holder of the Securities shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration.
(m) In the case of any Shelf Registration, the Company shall (i) make reasonably available for inspection by the Holders of the Securities, any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any attorney, accountant or other agent retained by the Holders of the Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of the Securities or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case, as shall be reasonably necessary to enable such persons, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the Initial Purchaser by you and on behalf of the other parties, by one counsel designated by and on behalf of such other parties as described in Section 3 hereof.
(n) In the case of any Shelf Registration, the Company, if requested by any Holder of Securities covered by thereby in connection with an underwritten offering of the Securities pursuant to the Shelf Registration Statement, shall cause (i) its counsel (which may include the Company's general counsel and/or the Company's outside counsel) to deliver an opinion or opinions and updates thereto relating to the Securities in customary form addressed to the Managing Underwriters (as defined in Section 7) thereof and dated, in the case of the initial opinion, the effective date of such Shelf Registration Statement (it being agreed that the “Required Period”matters to be covered by such opinion shall include, without limitation, the due incorporation and good standing of the Company and its subsidiaries; the qualification of the Company and its subsidiaries to transact business as foreign corporations; the due authorization, execution and delivery of the relevant agreement of the type referred to in Section 7 hereof; the due authorization, execution, authentication and issuance, and the validity and enforceability, of the applicable Securities; the absence of material legal or governmental proceedings involving the Company and its subsidiaries; the absence of governmental approvals required to be obtained in connection with the Shelf Registration Statement, the offering and sale of the applicable Securities, or any agreement of the type referred to in Section 7 hereof; the compliance as to form of such Shelf Registration Statement and any documents incorporated by reference therein with the requirements of the Securities Act; and, as of the date of the opinion and as of the effective date of the Shelf Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from such Shelf Registration Statement and the prospectus included therein, as then amended or supplemented, and from any documents incorporated by reference therein of an untrue statement of a material fact or the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any such documents, in the light of the circumstances existing at the time that such documents were filed with the Commission under the Securities and Exchange Act of 1934, as amended (the "Exchange Act")); and
(ii) its officers to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Securities and (iii) its independent public accountants to provide to the underwriter(s) of the applicable Securities a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(o) The Company shall use its reasonable best efforts to cause the resale prospectus to be supplemented by any required prospectus supplement; provided, that a registration pursuant to a Common Stock included in such Shelf Registration Statement to be, upon resale thereunder, listed on each U.S. securities exchange, if any, on which any shares of Common Stock are then listed.
(p) The Company shall not be deemed use its reasonable best efforts to have been effected unless it has been declared effective by take all other steps necessary to effect the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order registration of the SEC or other governmental agency or court after Transfer Restricted Securities covered by the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 1 contract
Shelf Registration Procedures. The In connection with the obligations of the Company with respect to the Shelf Registration Statements contemplated by this Section 2, the Company shall use its best efforts to have effect each such registration to permit the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date sale of the Shelf RequestRegistrable Securities covered thereby in accordance with the intended method or methods of disposition thereof, or (ii) if the Registration Statement is subject to a full review by the SECand pursuant thereto it will, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shallas expeditiously as possible:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus at least five days prior to be used in connection with sales pursuant to such filing a Shelf Registration Statement by 9:30 a.m. New York time on or Shelf Prospectus or any amendments or supplements thereto, furnish to the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part Holders of the Registrable Securities held covered by such Holder without restrictionShelf Registration Statement, the Advisor, the Settlement Agent, each Creditor and the underwriter(s), if any, copies of all such documents proposed to be filed, and the Company will consider any comments thereon by any of the foregoing and will not file any Shelf Registration Statement or amendment thereto or any Shelf Prospectus or any supplement thereto to which the Holders of the Registrable Securities covered by such Shelf Registration Statement, the Creditors, the Advisor, the Settlement Agent or the managing underwriter(s), if any, shall reasonably object;
(ii) use its reasonable best efforts in accordance with (i) above, promptly thereafter prepare and file with the SEC, any such Shelf Registration Statement, which Shelf Registration Statement (a) shall be available for the sale of the Registrable Securities covered thereby in accordance with the intended method or methods of distribution by the selling Holders thereof and (b) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(a) prepare and file with the SEC such amendments and post-to such Shelf Registration Statement as may reasonably be requested by any Holder of Registrable Securities, the Advisor, the Settlement Agent or the managing underwriter(s), if any, or as may be required by the Securities Act, the Exchange Act or by the rules, regulations or instructions applicable to the registration form utilized by the Company or as may otherwise be necessary to keep such Shelf Registration Statement effective amendments for the applicable period; (b) cause the Shelf Prospectus to be amended or supplemented as may reasonably be requested by the Settlement Agent, the Advisor, or the managing underwriter(s), if any, or as may be required by the Securities Act, the Exchange Act or by the rules, regulations or instructions applicable to the registration form utilized by the Company or as may otherwise be necessary to keep such Shelf Registration Statement effective for the applicable period; (c) cause the Shelf Prospectus as so amended or supplemented to be filed pursuant to Rule 424 (or any successor rule) under the Securities Act; (d) respond as promptly as reasonably practicable to any comments received from the SEC with respect to the Shelf Registration Statement as may be necessary or any amendment thereto; and (e) comply with the provisions of the Securities Act with respect to keep the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof;
(iv) promptly notify the selling Holders of Registrable Securities, the Creditors, the Advisor and the Settlement Agent and the managing underwriter(s), if any, and if requested by any such Person, confirm such advice in writing:
(a) of the filing of the Shelf Prospectus or any supplement to the Shelf Prospectus and of the effectiveness of the Shelf Registration Statement continuously and/or any post-effective amendment,
(subject b) of any request by the SEC for amendments or supplements to the Shelf Registration Statement or the Shelf Prospectus or for additional information,
(c) of the issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose, and
(d) of the receipt by the Company of any notification with respect to the suspension period(sof the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(v) make reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Shelf Registration Statement or any qualification referred to in paragraph (iv)(d) at the earliest possible moment;
(vi) if reasonably requested by the managing underwriter(s) or the Holders of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement such information as the managing underwriter(s) or the Holders 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 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 supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement reasonably promptly after being notified of the matters to be incorporated in such supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement;
(vii) promptly furnish to each selling Holder of Registrable Securities, the Advisor, the Settlement Agent, each Creditor and each managing underwriter, if any, at least one signed copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(viii) pursuant promptly deliver to Rule 415 until each Creditor one courtesy copy and to each Holder of Registrable Securities, the earlier Advisor, the Settlement Agent, and the managing underwriter(s), if any, as many copies of the Shelf Registration Statement, each Shelf Prospectus and any amendment or supplement thereto (A) the date in each case including all exhibits), as of which such Persons may reasonably request, and such other documents as such selling Holder may sell reasonably request in order to facilitate the disposition of its Registrable Securities; and, in connection therewith, the Company confirms that it consents to the use of the Shelf Prospectus and any amendment or supplement thereto by each such Holder of Registrable Securities and the underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(ix) prior to the time the Shelf Registration Statement is declared effective by the SEC, register or qualify the Registrable Securities covered thereby or reasonably cooperate with the Settlement Agent, the Advisor, selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any selling Holder, the Advisor, the Settlement Agent or managing underwriter(s), if any, reasonably request(s), keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective, and do any and all other acts or things necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Shelf Registration Statement without restriction or limitation pursuant Statement;
(x) cooperate with the selling Holders of Registrable Securities and the managing underwriter(s), if any, to Rule 144 facilitate the timely preparation and without delivery of certificates representing Registrable Securities to be sold and not bearing any legends restricting the requirement transfer thereof; and enable such Registrable Securities to be in compliance with Rule 144(c)(1such denominations and registered in such names as the selling Holders, Settlement Agent, or the managing underwriters may request at least two Business Days prior to any sale of Registrable Securities;
(xi) (upon execution and delivery of such mutually acceptable confidentiality agreements as the Company may reasonably request, make available to any underwriter participating in any disposition pursuant to such Shelf Registration Statement, and any attorney or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold accountant retained by such underwriter, all financial and other records, pertinent corporate documents and properties of the Registrable Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such underwriter, attorney or accountant in connection with the registration, at such time or times as the Person requesting such information shall reasonably determine;
(xii) otherwise use its best efforts to comply with the Securities covered by Act, the Exchange Act, all applicable rules and regulations of the SEC and all applicable state blue sky and other securities laws, rules and regulations, and make generally available to its security holders, as soon as practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act;
(xiii) cooperate and assist in any filings required to be made with the NASD; and
(xiv) enter into such customary agreements (including, if such Shelf Registration Statement relates to an underwritten offering, an underwriting agreement) and take all such other customary actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and, in such connection, if the registration is in connection with an underwritten offering, (a) make such representations and warranties to the “Required Period”)underwriters in such form, substance, and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested; and
(iiib) use its reasonable best efforts obtain opinions of counsel to cause the resale prospectus Company and updates thereof (which counsel and opinions in form, scope, and substance shall be satisfactory to the underwriters in their judgment reasonably exercised) addressed to the underwriters covering the matters of the type customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters; (c) obtain "cold comfort" letters and updates thereof from the Company's accountants addressed to the underwriters, such letters to be supplemented in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with underwritten offerings; (d) set forth in full in any required prospectus supplement; provided, that a registration underwriting agreement entered into the indemnification provisions and procedures of Section 4 hereof with respect to all parties to be indemnified pursuant to a Shelf Registration Statement shall not said Article; and (e) deliver such documents and certificates as may reasonably be deemed to have been effected unless it has been declared effective requested by the SEC underwriters to evidence compliance with clause (a) above and has remained effective for with any customary conditions contained in the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, underwriting agreement or other order of agreement entered into by the SEC Company; the above shall be done at each closing under such underwriting or other governmental agency similar agreement or court after as and to the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedextent required hereunder.
Appears in 1 contract
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holders covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 3(b) and Section 3(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holders covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holders to the effect that the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that the Company may deliver only -------- ------- two such notices within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holders that they intend to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to -------- ------- prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holders have delivered a Shelf Registration Notice to the Company, each Holder covered thereby shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post- effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Such Holders also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holders no longer intend to make offers or sales under the Shelf Registration Statement;
(c) after the Holders have delivered a Shelf Registration Notice to the Company, furnish each Holder covered thereby, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Registration Statement without restriction Prospectus or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (amendment or any successor supplement thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (the “Required Period”); and;
(iiid) use its reasonable best efforts to cause register or qualify the resale prospectus to be supplemented Shelf Registrable Securities by any required prospectus supplement; provided, that a registration pursuant to a the time the Shelf Registration Statement shall not be deemed to have been effected unless it has been is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as the Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holders after they have delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company -------- ------- shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holders promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) if the Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the Holders have delivered a Shelf Registration Notice to the Company, furnish to each Holder covered thereby, without charge, at least one conformed copy of the Shelf Registration Statement and any post- effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with each selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as each Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 3(b) or clause (v) of Section 3(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holders have provided a Shelf Registration Notice to the Company, make available for inspection by each Holder covered thereby and any counsel, accountants or other representatives retained by such Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by such Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the -------- ------- Company determines in good faith to be confidential and notifies such Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by such Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to each Holder covered thereby after the Holders have provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require each Holder to furnish to the Company in writing such information regarding the proposed distribution by such Holder as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, each Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has remained received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective for amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Required Period; further providedCompany contemplated by Section 3(b) or Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), that if an offering of such Holder shall not offer or sell any Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes until such Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in such Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by such Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, such Holder will be deemed not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has again complied with the provisions of clause (i) above; (iv) such Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC as applicable to have been effectedthem in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; (v) such Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement; and (vi) such Holder and any of its beneficial owners, officers, directors or affiliates, if any, will enter into such written agreements as the Company shall reasonably request to ensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 3 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holders covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holders covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holders to the effect that the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that the Company may deliver only -------- ------- two such notices within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holders that they intend to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to -------- ------- prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holders have delivered a Shelf Registration Notice to the Company, each Holder covered thereby shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post- effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Such Holders also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holders no longer intend to make offers or sales under the Shelf Registration Statement;
(c) after the Holders have delivered a Shelf Registration Notice to the Company, furnish each Holder covered thereby, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Registration Statement without restriction Prospectus or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (amendment or any successor supplement thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (the “Required Period”); and;
(iiid) use its reasonable best efforts to cause register or qualify the resale prospectus to be supplemented Shelf Registrable Securities by any required prospectus supplement; provided, that a registration pursuant to a the time the Shelf Registration Statement shall not be deemed to have been effected unless it has been is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as the Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holders after they have delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company -------- ------- shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holders promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) if the Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the Holders have delivered a Shelf Registration Notice to the Company, furnish to each Holder covered thereby, without charge, at least one conformed copy of the Shelf Registration Statement and any post- effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with each selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as each Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holders have provided a Shelf Registration Notice to the Company, make available for inspection by each Holder covered thereby and any counsel, accountants or other representatives retained by such Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by such Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the -------- ------- Company determines in good faith to be confidential and notifies such Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by such Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to each Holder covered thereby after the Holders have provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require each Holder to furnish to the Company in writing such information regarding the proposed distribution by such Holder as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3 hereof and this Section 4, each Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 4(b) and has remained received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 4(c) and notice from the Company that the Shelf Registration Statement and any post-effective for amendments thereto have become effective as contemplated by Section 4(e); (ii) upon receipt of any notice from the Required Period; further providedCompany contemplated by Section 4(b) or Section 4(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 4(e)), that if an offering of such Holder shall not offer or sell any Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes until such Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in such Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by such Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, such Holder will be deemed not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has again complied with the provisions of clause (i) above; (iv) such Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC as applicable to have been effectedthem in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; (v) such Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement; and (vi) such Holder and any of its beneficial owners, officers, directors or affiliates, if any, will enter into such written agreements as the Company shall reasonably request to ensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Weeks Corp)
Shelf Registration Procedures. The In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by this Section 3, the Company shall use its best efforts to have effect such registration to permit the Registration Statement declared effective by sale of such Registrable Securities in accordance with the SEC intended method or methods of disposition thereof, and pursuant thereto it will, as soon expeditiously as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shallpossible:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments to the before filing a Shelf Registration Statement as may be necessary to keep the or Shelf Registration Statement continuously effective (subject to any suspension period(s)) pursuant to Rule 415 until the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered by the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (Prospectus or any successor amendments or supplements thereto) promulgated under , furnish to the 1933 Act or (B) the date on which Holder shall have sold all Holders of the Registrable Securities covered by such Shelf Registration Statement and the underwriter(s), if any, copies of all such documents proposed to be filed, which documents will be made available, on a timely basis, for review by such Holders and underwriters; and the Company will not file any Shelf Registration Statement or amendment thereto or any Shelf Prospectus or any supplement thereto to which the Required Holders of the Registrable Securities covered by such Shelf Registration Statement or the managing underwriter(s), if any, shall reasonably object;
(ii) prepare and file with the “Required Period”SEC, within the time period set forth in Section 3(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement (a) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by the selling Holders thereof and (b) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(a) prepare and file with the SEC such amendments to such Shelf Registration Statement as may be reasonably requested by any Holder of Registrable Securities or the managing underwriter(s), if any, or as may be required by the Securities Act, the Exchange Act or by the rules, regulations or instructions applicable to the registration form utilized by the Company or as may otherwise be necessary to keep such Shelf Registration Statement effective for the applicable period; (b) cause the Shelf Prospectus to be amended or supplemented as may be reasonably requested by any Holder of Registrable Securities or the managing underwriter(s), if any, or as may be required by the Securities Act, the Exchange Act or by the rules, regulations or instructions applicable to the registration form utilized by the Company or as may otherwise be necessary to keep such Shelf Registration Statement effective for the applicable period; (c) cause the Shelf Prospectus as so amended or supplemented to be filed pursuant to Rule 424 (or any successor rule) under the Securities Act; (d) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (e) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof;
(iv) promptly notify the selling Holders of Registrable Securities and the managing underwriter(s), if any, and if requested by any such Person, confirm such advice in writing:
(a) of the filing of the Shelf Prospectus or any supplement to the Shelf Prospectus and of the effectiveness of the Shelf Registration Statement and/or any post-effective amendment,
(b) of any request by the SEC for amendments or supplements to the Shelf Registration Statement or the Shelf Prospectus or for additional information,
(c) of the issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose,
(d) of the Company's becoming aware at any time that the representations and warranties of the Company contemplated by paragraph (xv)(a) below have ceased to be true and correct,
(e) 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 threat of any proceeding for such purpose, and
(iiif) of the existence of any fact which, to the knowledge of the Company, results in the Shelf Registration Statement, the Shelf Prospectus or any document incorporated therein by reference containing an untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(v) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any qualification referred to in paragraph (iii)(e) at the earliest possible moment;
(vi) if reasonably requested by the managing underwriter(s) or the Required Holders of Registrable Securities being sold in connection with an underwritten offering, immediately incorporate in a supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement such information as the managing underwriter(s) or the Required Holders 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 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 supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement as soon as notified of the matters to be incorporated in such supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement;
(vii) at the request of any selling Holder of Registrable Securities, furnish to such selling Holder of Registrable Securities and each managing underwriter, if any, without charge, at least one signed copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(viii) deliver to each Holder of Registrable Securities and the managing underwriter(s), if any, without charge, as many copies of the Shelf Registration Statement, each Shelf Prospectus and any amendment or supplement thereto (in each case including all exhibits), as such Persons may reasonably request, together with all documents incorporated by reference in such Shelf Registration Statement or Shelf Prospectus, and such other documents as such selling Holder may reasonably request in order to facilitate the disposition of its Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by each such Holder of Registrable Securities and the underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(ix) prior to the time the Shelf Registration Statement is declared effective by the SEC, register or qualify the Registrable Securities or reasonably cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any selling Holder or managing underwriter(s), if any, reasonably request(s), keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective, and do any and all other acts or things necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by the Shelf Registration Statement;
(x) cooperate with the selling Holders of Registrable Securities and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any legends restricting the transfer thereof; and enable such Registrable Securities to be in such denominations and registered in such names as the selling Holders or the managing underwriters, if any, may request at least two Business Days prior to any sale of Registrable Securities;
(xi) use its reasonable best efforts to cause the resale prospectus to be supplemented by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated covered by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveto be registered with or approved by such United States, state and local governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(xii) if any fact contemplated by paragraph (iv)(b) or (iv)(f) above shall exist, promptly notify each Holder on whose behalf Registrable Securities have been registered and promptly prepare and furnish to such Holders a supplement or post-effective amendment to the Shelf Registration Statement or the related Shelf Prospectus or any document incorporated therein by reference and promptly file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, neither the Shelf Registration Statement nor the Shelf Prospectus will contain an untrue statement of a material fact or omit to state any material fact required to be deemed stated therein or necessary to make the statements therein not misleading;
(xiii) if requested by the Required Holders of the Registrable Securities or by the managing underwriter(s), if any, cause all Registrable Securities covered by the Shelf Registration Statement to have been effected.be (a) listed on each securities exchange on which securities of the same class are then listed or (b) admitted for trading in any inter-dealer quotation system on which securities of the same class are then traded;
(xiv) not later than the effective date of the Shelf Registration Statement, provide a CUSIP number for all Registrable Securities covered by the Shelf Registration Statement and provide the applicable transfer agent with printed certificates for such Registrable Securities which are in a form eligible for deposit with Depository Trust Company;
(xv) enter into agreements (including underwriting agreements) and take all other reasonable actions in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, except as otherwise provided, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration:
(a) make such representations and warranties to the Holders selling such Registrable Securities and, in connection with any underwritten offering, to the underwriters, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings;
(b) obtain opinions of counsel to the Company and updates thereof addressed to each selling Holder and the underwriters, if any, covering the matters customarily covered in opinions requested in similar underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters, which counsel and opinions shall be reasonably satisfactory (in form, scope and substance) to the managing underwriters, if any, and the Required Holders of such Registrable Securities;
(c) in connection with any underwritten offering, to obtain so-called "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling Holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold
Appears in 1 contract
Samples: Registration Rights Agreement (Internationale Nederlanden Capital Corp)
Shelf Registration Procedures. The Company (a) During the Required Period, any Holder shall use its best efforts be entitled to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, sell all or any part of the Registrable Securities held by Common Stock registered on behalf of such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments pursuant to the Shelf Registration Statement ("Holder Shelf Offering"); provided, however, that with respect to any transferee that becomes a Holder pursuant to Section 11.2, such Holder shall deliver a Notice and Questionnaire to the Company at least ten (10) Business Days prior to any intended distribution of Registrable Common Stock under a Shelf Registration Statement. The Company shall (i) as may be necessary promptly as is practicable after the date a Notice and Questionnaire is received by the Company, but in any event within ten (10) Business Days after such date, if required by applicable law, file with the Commission a post-effective amendment to keep the applicable Shelf Registration Statement continuously effective (subject or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any suspension period(s)) pursuant to Rule 415 until document incorporated therein by reference or file any other required document so that the earlier of (A) the date Holder delivering such Notice and Questionnaire is named as of which Holder may sell all of the Registrable Securities covered by the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be a selling securityholder in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (and the “Required Period”); related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of the Registrable Common Stock in accordance with applicable law and
(iii) , if the Company shall file a post-effective amendment to the Shelf Registration Statement, use its commercially reasonable best efforts to cause the resale prospectus such post-effective amendment to be supplemented by declared effective under the Securities Act as promptly as is practicable and (ii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any required prospectus supplementpost-effective amendment filed pursuant to this Article 2; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further providedhowever, that if an offering such Notice and Questionnaire is delivered during a Suspension Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i) and (ii) above upon expiration of the Suspension Period as though such Holder's Notice and Questionnaire had been delivered on the expiration date of such Suspension Period.
(b) Any Holder may, by written notice to the Company, request that the Company take any reasonable steps necessary to assist and cooperate with such Holder to facilitate a Holder Shelf Offering, subject to the provisions hereof. Such request will specify the number of shares of Registrable Securities pursuant proposed to a Shelf Registration Statement is terminated by any stop order, injunction, or other order be sold and will also specify the intended method of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effecteddisposition thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (International Wire Group Inc)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 3 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holder covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holder covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holder to the effect that the Holder may not make offers or sales under the Shelf Registration Statement for a period not to exceed ninety (90) days from the date of such notice; PROVIDED, HOWEVER, that the Company may deliver only two such notices within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holder that it intends to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; PROVIDED, HOWEVER, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holder has delivered a Shelf Registration Notice to the Company, the Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. The Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as the Holder no longer intends to make offers or sales under the Shelf Registration Statement;
(c) after the Holder has delivered a Shelf Registration Notice to the Company, furnish the Holder, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holder of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holder shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holder after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; PROVIDED, HOWEVER, that in compliance connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holder promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the “Required Period”Holder has delivered a Shelf Registration Notice to the Company, furnish to the Holder covered thereby, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as the Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holder has provided a Shelf Registration Notice to the Company, make available for inspection by the Holder covered thereby and any counsel, accountants or other representatives retained by the Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by such Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; PROVIDED, HOWEVER, that such records, documents or information which the Company determines in good faith to be confidential and notifies the Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by the Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holder covered thereby after the Holder has provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its reasonable best efforts to cause make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus to provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be supplemented by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective adopted by the SEC SEC. The Company may require the Holder to furnish to the Company in writing such information regarding the proposed distribution by such Holder as the Company may from time to time reasonably request in writing. In connection with and has remained effective for as a condition to the Required Period; further provided, that if an offering of Registrable Securities pursuant Company's obligations with respect to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectivepursuant to Section 3 hereof and this Section 4, the Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement will be deemed not until it has provided a Shelf Registration Notice pursuant to have been effected.Section 4(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Duke Realty Investments Inc)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 3 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holder covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holder covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holder to the effect that the Holder may not make offers or sales under the Shelf Registration Statement for a period not to exceed ninety (90) days from the date of such notice; provided, however, that the Company may deliver -------- ------- only two such notices within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holder that it intends to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business -------- ------- days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holder has delivered a Shelf Registration Notice to the Company, the Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. The Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as the Holder no longer intends to make offers or sales under the Shelf Registration Statement;
(c) after the Holder has delivered a Shelf Registration Notice to the Company, furnish the Holder, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holder of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holder shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holder after they have delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in compliance connection therewith, the Company -------- ------- shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holder promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the “Required Period”Holder has delivered a Shelf Registration Notice to the Company, furnish to the Holder, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as the Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holder has provided a Shelf Registration Notice to the Company, make available for inspection by the Holder covered thereby and any counsel, accountants or other representatives retained by the Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by the Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the -------- ------- Company determines in good faith to be confidential and notifies the Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by the Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holder covered thereby after the Holder has provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its reasonable best efforts to cause make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require the Holder to be supplemented furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that the Holder as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3 hereof and this Section 4, the Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 4(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 4(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 4(e); (ii) upon receipt of any notice from the Company contemplated by Section 4(b) or Section 4(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 4(e)), the Holder shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until the Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by the Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, the Holder will not be deemed to have been effected unless offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has been declared effective again complied with the provisions of clause (i) above; (iv) the Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC and has remained effective for the Required Period; further provided, that if an offering as applicable to them in connection with sales of Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; (v) the Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement Statement; and (vi) the Holder and any of its beneficial owners, officers, directors or affiliates, if any, will be deemed not enter into such written agreements as the Company shall reasonably request to have been effectedensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Weeks Corp)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject pursuant to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC SEC, within the time period set forth in Section 2(a) hereof, an amendment to its current Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities covered thereby in accordance with the intended method or methods of distribution by the Holders thereof as set forth in the Prospectus and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith.
(b) subject to the last three sentences of this Section 3(b) and to Section 3(i) hereof, (i) prepare and file with the Commission such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep the such Shelf Registration Statement continuously effective for the applicable period set forth in Section 2; (subject ii) cause the Prospectus to be supplemented by any suspension period(s)) required prospectus supplement, and as so supplemented to be filed pursuant to Rule 415 424 or any similar rule that may be adopted under the Securities Act; (iii) respond promptly to any comments received from the Commission with respect to such Shelf Registration Statement, or any amendment, post-effective amendment or supplement relating thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in clauses (i), (ii) or (iii) above with respect to a particular Holder of Registrable Securities unless and until the earlier Company has received a written notice (a "Registration Notice") from such Holder that it intends to make offers or sales under such Shelf Registration Statement as specified in such Registration Notice; provided, however, that the Company shall have 7 business days to prepare and file any such amendment or supplement after receipt of a Registration Notice. Once a Holder has delivered such a Registration Notice to the Company, such Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify such Holder and the method of distribution in a post-effective amendment to such Shelf Registration Statement or a supplement to a Prospectus. Offers or sales under such Shelf Registration Statement may be made only during a Sale Period. Such Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holder no longer intends to make offers or sales under such Shelf Registration Statement.
(Ac) furnish to each Holder of Registrable Securities that has delivered a Registration Notice to the date Company, without charge, as many copies of which each applicable Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may sell all reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of such Prospectus, including each preliminary Prospectus, by each such Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by such Prospectus or the preliminary Prospectus.
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered thereby by the time such amendment to the Shelf Registration Statement is declared effective by the Commission under all applicable state securities or "blue sky" laws of such jurisdictions as any Holder of Registrable Securities covered by such Shelf Registration Statement shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by a Holder that has delivered a Registration Notice to the Company, whichever is shorter, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities then owned by such Holder; provided, however, that the Company shall not be required (i) to qualify generally to do business in any jurisdiction or to register as a broker or dealer in such jurisdiction where it would not be required so to qualify or register but for this Section 3(d), (ii) to subject itself to taxation in any such jurisdiction or (iii) to submit to the general service of process in any such jurisdiction.
(e) notify each Holder when such amendment to the Shelf Registration Statement has become effective and notify each Holder of Registrable Securities that has delivered a Registration Notice to the Company promptly and, if requested by such Holder, confirm such advice in writing (i) when any post-effective amendments and supplements to such Shelf Registration Statement become effective, (ii) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (iii) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose and (iv) of the happening of any event during the period such Shelf Registration Statement is effective as a result of which such Shelf Registration Statement or a related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration Statement at the earliest possible moment.
(g) furnish to each Holder of Registrable Securities covered thereby that has delivered a Registration Notice to the Company, without restriction charge, at least one conformed copy of such Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or limitation exhibits thereto, unless requested).
(h) cooperate with the selling Holders of Registrable Securities covered thereby to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such names as the selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities.
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by Section 3(e)(iv) hereof, use its reasonable best efforts promptly to prepare and file a supplement or prepare, file and obtain effectiveness of a post-effective amendment to such Shelf Registration Statement or a related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) make available for inspection by representatives of the Holders of the Registrable Securities and any counsel or accountant retained by such Holders, all financial and other records, pertinent corporate documents and properties of the Company, and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, counsel or accountant in connection with such Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential, and notifies such representatives, counsel or accountants in writing that such records, documents or information are confidential, shall not be disclosed by the representatives, counsel or accountants unless (i) the disclosure of such records, documents or information is necessary to avoid or correct a material misstatement or omission in such Shelf Registration Statement, (ii) the release of such records, documents or information is ordered pursuant to Rule 144 and without a subpoena or other order from a court of competent jurisdiction or (iii) such records, documents or information have been generally made available to the requirement public otherwise than in violation of this Agreement.
(k) a reasonable time prior to the filing of any Prospectus, any amendment to such Shelf Registration Statement or amendment or supplement to a Prospectus, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holders of Registrable Securities that have provided a Registration Notice to the Company.
(l) use its reasonable best efforts to cause all Registrable Securities to be in compliance with Rule 144(c)(1) (or listed on any successor thereto) promulgated under the 1933 Act or (B) the date securities exchange on which Holder similar securities issued by the Company are then listed.
(m) continue to maintain a CUSIP number for all Registrable Securities.
(n) otherwise use its 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, an earnings statement covering at least 12 months which shall have sold all satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(o) use its reasonable best efforts to cause the Registrable Securities covered by such Shelf Registration Statement (to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the “Required Period”); andbusiness and operations of the Company to enable Holders that have delivered Registration Notices to the Company to consummate the disposition of such Registrable Securities. The Company may require each Holder of Registrable Securities to furnish to the Company in writing such information regarding the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to any Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, each Holder agrees with the Company that:
(iiii) use it will not offer or sell its reasonable best efforts to cause the resale prospectus to be supplemented by any required prospectus supplement; provided, that a registration pursuant to Registrable Securities under a Shelf Registration Statement shall not be deemed to have been effected unless until (A) it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities provided a Registration Notice pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effected.Section 3(b) hereof and
Appears in 1 contract
Samples: Registration Rights Agreement (Corporate Office Properties Trust)
Shelf Registration Procedures. The Company (a) During the Required Period, any Holder shall use be entitled, subject to the remainder of this Section 3.2, to register all or any part of its best efforts Registrable Securities for sale pursuant to have the Shelf Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject and to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, sell all or any part of the Registrable Securities held by registered on behalf of such Holder without restriction;
pursuant to the Shelf Registration Statement (ii“Holder Shelf Offering”). Notwithstanding any other provision of this Agreement, no Holder may include any of its Registrable Securities in a Holder Shelf Offering pursuant to this Agreement unless the Holder shall provide to the Company a fully completed notice and questionnaire in substantially the form set forth in Exhibit A hereto (the “Questionnaire”) and such other information in writing as may be reasonably requested by the Company pursuant to Section 7.2 (the “Selling Holder Information”). In order to be named as a selling securityholder in the Shelf Registration Statement or Prospectus at the time it initially becomes effective under the Securities Act, each Holder must no later than three Business Days prior to the Effective Date of the Shelf Registration Statement, which will be at least 15 days following notice by the Company of the expected initial Effective Date (the “Company Registration Notice”), furnish in writing the completed Questionnaire and such other Selling Holder Information that the Company may reasonably request in writing, if any, to the Company. The Company Registration Notice shall set forth (1) the expected Effective Date of the Shelf Registration Statement and (2) the date by which Holders must return a completed Questionnaire in order to be named as selling securityholders in the Shelf Registration Statement. In addition, if such Company Registration Notice is given prior to the effective date of the Amended Plan, then the Company shall provide the following information to the Holders on or prior to five (5) Business Days prior to the Effective Date of the Shelf Registration Statement: (a) for each class under the Amended Plan receiving shares of New Common Stock, the approximate number of shares of New Common Stock that a holder of $1,000 in Allowed Claims (as defined in the Amended Plan) of such class would receive on the effective date of the Amended Plan and (b) for each series of notes under the Prepetition Indenture (as defined in the Amended Plan), the approximate number of shares of New Common Stock that a holder of $1,000 in principal amount of such series would receive on the effective date of the Amended Plan. The Company shall include in the Shelf Registration Statement the information from the completed Questionnaire and such other Selling Holder Information, if any, received by the Company at least three Business Days prior to the initial Effective Date of the Shelf Registration Statement and the Prospectus, as necessary in a manner so that upon such effectiveness of the Shelf Registration Statement the Holder shall be named as a selling securityholder and be permitted to deliver (or be deemed to deliver) such Prospectus to purchasers of the Registrable Securities in accordance with applicable law. From and after the date that the Shelf Registration Statement initially becomes effective, upon receipt of a completed Questionnaire (including any updated Questionnaire) and such other Selling Holder Information (including any updated Selling Holder Information) that the Company may reasonably request in writing (including any amendments to any prior Questionnaire or Selling Holder Information), if any, but in any event within 10 Business Days after the Company receives the completed Questionnaire and such other Selling Holder Information, if any, the Company shall use its reasonable best efforts to prepare and file with the SEC such any amendments and post-effective amendments or supplements to the Shelf Registration Statement or Prospectus or the documents incorporated by reference therein necessary for such Holder to be named as may a selling securityholder and permit such Holder to deliver (or be necessary deemed to keep the Shelf Registration Statement continuously effective (subject to any suspension period(s)) pursuant to Rule 415 until the earlier of (Adeliver) the date as of which Holder may sell all Prospectus to purchasers of the Registrable Securities covered (subject to the Company’s rights during a Blackout Period). Holders that do not deliver a completed written Questionnaire and such other information, as provided for in this Section 3.2(a), shall not be named as selling securityholders in the Prospectus until such Holder delivers such information and the appropriate notice and other periods called for by this Agreement shall have elapsed. If the Company shall file a post-effective amendment to the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder Statement, it shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (the “Required Period”); and
(iii) use its reasonable best efforts to cause the resale prospectus such post-effective amendment to be supplemented by declared effective under the Securities Act as promptly as is reasonably practicable and notify such Holder as promptly as practicable after the effectiveness 7 under the Securities Act of any required prospectus supplement; provided, that a registration post-effective amendment filed pursuant to this Article III. If such Selling Holder Information is delivered during a Blackout Period, the Company shall so inform the Holder delivering such Selling Holder Information and shall take the actions set forth in this Section 3.2(a) upon expiration of the Blackout Period as though such Holder’s Selling Holder Information had been delivered on the expiration date of such Blackout Period.
(b) Any Holder may, by written notice to the Company, request that the Company take any commercially reasonable steps necessary to assist and cooperate with such Holder to facilitate a Holder Shelf Offering, including by amending the Shelf Registration Statement and/or supplementing the Prospectus, subject to the provisions of this Agreement. Such written notice shall not be deemed to have been effected unless it has been declared effective by specify the SEC and has remained effective for the Required Period; further provided, that if an offering number of shares of Registrable Securities pursuant proposed to a Shelf Registration Statement is terminated by be sold and shall also specify the intended method of disposition thereof.
(c) At any stop order, injunction, or other order of the SEC or other governmental agency or court time and from time to time after the Shelf Registration Statement becomes effective, any Holder may request in writing that the Company file a supplement to the Prospectus, or to the extent that it may be required, a post-effective amendment to the Shelf Registration Statement, in order to update such Holder’s Selling Holder Information (which written request shall be addressed to the Company, shall state that the request is for a supplement or post-effective amendment pursuant to this Section 3.2(c) and shall specify the Holder’s updated Selling Holder Information). The Company shall file a supplement or post-effective amendment covering such requesting Holder’s or Holders’ Registrable Securities requested to be registered as promptly as practicable after receipt of such request.
(d) No Person, other than the Holders as contemplated by this Agreement and Monsanto Company as contemplated by the Shelf Registration Statement will and the Amended Plan, shall be deemed not entitled to have been effectedbe named as a selling securityholder in the Shelf Registration Statement or include any securities to be sold using the Shelf Registration Statement or the Prospectus.
Appears in 1 contract
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject pursuant to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC SEC, within the time period set forth in Section 2(a) hereof, a Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities covered thereby in accordance with the intended method or methods of distribution by the selling Holders thereof and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith.
(b) subject to the last three sentences of this Section 3(b) and to Section 3(i) hereof, (i) prepare and file with the Commission such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep the such Shelf Registration Statement continuously effective for the applicable period; (subject ii) cause each Prospectus to be supplemented by any suspension period(s)) required prospectus supplement, and as so supplemented to be filed pursuant to Rule 415 424 or any similar rule that may be adopted under the Securities Act; (iii) respond promptly to any comments received from the Commission with respect to such Shelf Registration Statement, or any amendment, post-effective amendment or supplement relating thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in clauses (i), (ii) or (iii) above with respect to a particular Holder of Registrable Securities unless and until the earlier Company has received either a written notice (a "Registration No-xxxx") from such Holder that it intends to make offers or sales under such Shelf Registration Statement as specified in such Registration Notice or a written response from such Holder of the type contemplated by Section 2(b); provided, however, that the Company shall have 7 business days to prepare and file any such amendment or supplement after receipt of a Registration Notice. Once a Holder has delivered such a written response or a Registration Notice to the Company, such Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify such Holder and the method of distribution in a post-effective amendment to such Shelf Registration Statement or a supplement to a Prospectus. Offers or sales under such Shelf Registration Statement may be made only during a Sale Period. Such Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holder no longer intends to make offers or sales under such Shelf Registration Statement.
(Ac) furnish to each Holder of Registrable Securities that has delivered a Registration Notice to the date Company, without charge, as many copies of which each applicable Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may sell all reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of such Prospectus, including each preliminary Prospectus, by each such Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by such Prospectus or the preliminary Prospectus.
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered thereby by the time such Shelf Registration Statement is declared effective by the Commission under all applicable state securities or "blue sky" laws of such jurisdictions as any Holder of Registrable Securities covered by such Shelf Registration Statement shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by a Holder that has delivered a Registration Notice to the Company, whichever is shorter, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities then owned by such Holder (after giving effect to the redemption of Partnership Units then held by such Holder); provided, however, that the Company shall not be required (i) to qualify generally to do business in any jurisdiction or to register as a broker or dealer in such jurisdiction where it would not be required so to qualify or register but for this Section 3(d), (ii) to subject itself to taxation in any such jurisdiction or (iii) to submit to the general service of process in any such jurisdiction.
(e) notify each Holder when such Shelf Registration Statement has become effective and notify each Holder of Registrable Securities that has delivered a Registration Notice to the Company promptly and, if requested by such Holder, confirm such advice in writing (i) when any post-effective amendments and supplements to such Shelf Registration Statement become effective, (ii) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (iii) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose and (iv) of the happening of any event during the period such Shelf Registration Statement is effective as a result of which such Shelf Registration Statement or a related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration Statement at the earliest possible moment.
(g) furnish to each Holder of Registrable Securities covered thereby that has delivered a Registration Notice to the Company, without restriction charge, at least one conformed copy of such Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or limitation exhibits thereto, unless requested).
(h) cooperate with the selling Holders of Registrable Securities covered thereby to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such names as the selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities.
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by Section 3(e)(iv) hereof, use its reasonable best efforts promptly to prepare and file a supplement or prepare, file and obtain effectiveness of a post-effective amendment to such Shelf Registration Statement or a related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) make available for inspection by representatives of the Holders of the Registrable Securities and any counsel or accountant retained by such Holders, all financial and other records, pertinent corporate documents and properties of the Company, and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, counsel or accountant in connection with such Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential, and notifies such representatives, counsel or accountants in writing that such records, documents or information are confidential, shall not be disclosed by the representatives, counsel or accountants unless (i) the disclosure of such records, documents or information is necessary to avoid or correct a material misstatement or omission in such Shelf Registration Statement, (ii) the release of such records, documents or information is ordered pursuant to Rule 144 and without a subpoena or other order from a court of competent jurisdiction or (iii) such records, documents or information have been generally made available to the requirement public otherwise than in violation of this Agreement.
(k) a reasonable time prior to the filing of any Prospectus, any amendment to such Shelf Registration Statement or amendment or supplement to a Prospectus, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holders of Registrable Securities that have provided a Registration Notice to the Company.
(l) use its reasonable best efforts to cause all Registrable Securities to be in compliance with Rule 144(c)(1) (or listed on any successor thereto) promulgated under the 1933 Act or (B) the date securities exchange on which Holder similar securities issued by the Company are then listed.
(m) obtain a CUSIP number for all Registrable Securities, not later than the effective date of such Shelf Registration Statement.
(n) otherwise use its 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 at least 12 months which shall have sold all satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(o) use its reasonable best efforts to cause the Registrable Securities covered by such Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable Holders that have delivered Registration Notices to the Company to consummate the disposition of such Registrable Securities. The Company may require each Holder of Registrable Securities to furnish to the Company in writing such information regarding the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to any Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, each Holder agrees with the Company that:
(i) it will not offer or sell its Registrable Securities under a Shelf Registration Statement until (A) it has either (1) provided a Registration Notice pursuant to Section 3(b) hereof or (2) had Registrable Securities included in such Shelf Registration Statement at the “Required Period”); time it.became effective pursuant to Section 2(b) hereof and (B) it has received copies of the supplemented or amended Prospectus contemplated by Section 3(b) hereof and receives notice that any post-effective amendment has become effective;
(ii) upon receipt of any notice from the Company of the happening of anv event of the kind described in Section 3(b)(iv) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Shelf Registration Statement until such Holder receives copies of the supplemented or amended Prospectus contemplated by Section 3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, 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;
(iii) use all offers and sales under such Shelf Registration Statement shall be completed within forty-five (45) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such forty-five (45) day period the Holder will not offer or sell its reasonable best efforts Registrable Securities under the Shelf Registration Statement until it has again complied with the provisions of clauses (i)(A)(1) and (B) above, except that if the applicable Registration Notice was delivered to cause the resale prospectus to Company at a time which was not part of a Sale Period, such forty-five (45) day period shall be supplemented by any required prospectus supplement; providedthe next succeeding Sale Period;
(iv) if the Company determines in its good faith judgment, after consultation with counsel, that a registration pursuant to the filing of a Shelf Registration Statement shall not be deemed under Section 2 hereof or the use of any Prospectus would require the disclosure of important information which the Company has a bona fide business purpose for preserving as confidential or the disclosure of which would impede the Company's ability to have been effected unless it has been declared effective consummate a significant transaction, upon written notice of such determination by the SEC and has remained effective for Company, the Required Period; further providedrights of the Holders to offer, that if an offering of sell or distribute any Registrable Securities pursuant to a Shelf Registration Statement is terminated by or Prospectus or to require the Company to take action with respect to the registration or sale of any stop order, injunction, or other order of the SEC or other governmental agency or court after the Registrable Securities pursuant to a Shelf Registration Statement becomes effective(including any action contemplated by this Section 3) will be suspended until the date upon which the Company notifies the Holders in writing that suspension of such rights for the grounds set forth in this paragraph is no longer necessary; provided, however, that the Company may not suspend such rights for an aggregate period of more than 90 days in any 12-month period; and
(v) in the case of the registration of any underwitten equity offering proposed by the Company (other than any registration by the Company on Form S-8, or a successor or substantially similar form, of (i) an employee stock option, stock purchase or compensation plan or of securities issued or issuable pursuant to any such plan or (ii) a dividend reinvestment plan), such Holder will agree, if requested in writing by the managing underwriter or underwriters administering such offering, not to effect any offer, sale or distribution of any Registrable Securities (or any option or right to acquire Registrable Securities) (each, a "Transfer") during the period commencing on the 10th day prior to the expected effective date (which date shall be stated in such notice) of the registration statement covering such underwritten primary equity offering or, if such offering shall be a "take-down" from an effective shelf registration statement, the Shelf Registration Statement will 10th day prior to the expected commencement date (which date shall be deemed stated in such notice) of such offering, and ending on the date specified by such managing underwriter in such written request to such Holder; provided, however, that no Holder shall be required to agree not to have been effectedTransfer its Registrable Securities for a period of time which is longer than the greater of 90 days or the period of time for which any senior executive of the Company is required so to agree in connection with such offering. Nothing in this paragraph shall be read to limit the ability of any Holder to redeem its Partnership Units for Common Shares in accordance with the Partnership Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Corporate Office Properties, L.P.)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) prepare and file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement, which Shelf Registration Statement by 9:30 a.m. New York time on shall (i) be available for the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part sale of the Registrable Securities held in accordance with the intended method or methods of distribution by such Holder without restrictionthe Selling Holders thereof and (ii) comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(iib) use its reasonable best efforts subject to the last sentence of this Section 3(b) and to Section 3(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule which may be adopted under the Securities Act; (iii) respond promptly to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in Section 3(a), clauses (i), (ii) pursuant or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to Rule 415 until the earlier each Holder of Registrable Securities for a period not to exceed ninety (A90) days from the date of the Suspension Notice (as defined below) to the extent that the Company is in possession of material non-public information which the Board of Trustees in good xxxxx xxxxx advisable not to disclose or the Company is engaged in active negotiations or planning for a merger or material acquisition or disposition transaction and, in either case, the Company delivers written notice ( a “Suspension Notice”) to each such Selling Holder of Registrable Securities to the effect that it would be impractical or unadvisable to cause the Shelf Registration Statement or such filings to be made or to become effective or to amend or supplement the Shelf Registration Statement, and that such Selling Holder may sell all not make offers or sales under the Shelf Registration Statement for a period not to exceed ninety (90) days from the date of such Suspension Notice; provided, however, that the Company may deliver only two such Suspension Notices within any twelve-month period;
(c) furnish to each Selling Holder of Registrable Securities as many copies of the Prospectus and any amendment or supplement thereto as such Selling Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Prospectus and any amendment or supplement thereto by each such Selling Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to (i) register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as any Holder of Registrable Securities covered by the Shelf Registration Statement without restriction shall reasonably request in writing, and (ii) keep each such Shelf Registration or limitation pursuant to Rule 144 and without qualification effective during the requirement period the Shelf Registration Statement is required to be kept effective; provided, however, that in compliance connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction or (iii) file a consent to general and unlimited service of process in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d);
(e) notify each Holder of Registrable Securities promptly (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) the Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) furnish to each Selling Holder of Registrable Securities, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto, which shall have include any prospectus or prospectus supplement contained therein and any other amendments thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the Selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold all and not bearing any Securities Act legend;
(i) subject to the last sentence of Section 3(b) hereof, upon the occurrence of any event contemplated by the last sentence of Section 3(b) or clause (v) of Section 3(e) hereof, use commercially reasonable efforts promptly to (i) prepare and file an amendment or a supplement to the Prospectus or any document incorporated therein by reference or prepare, (ii) file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or (iii) file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) use commercially reasonable efforts to cause all Registrable Securities covered to be listed on any securities exchange on which similar securities issued by such the Company are then listed;
(k) provide the CUSIP number for all Registrable Securities, not later than the effective date of the Shelf Registration Statement Statement;
(l) use commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the “Required Period”)provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(iiim) otherwise use its commercially reasonable best efforts to cause comply with applicable rules and regulations of the resale prospectus SEC. The Company may require each Selling Holder of Registrable Securities to be supplemented furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that such Selling Holder of such Registrable Securities and other information as the Company may from time to time reasonably request in writing in connection therewith. In connection with and as a registration pursuant condition to a the Company’s obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, each Selling Holder covenants and agrees that (i) it will not offer or sell any Registrable Securities under the Shelf Registration Statement until it has received copies of the Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); or (ii) upon receipt of any notice from the Company contemplated by Section 3(b) (in respect of the occurrence of an event contemplated by the last sentence of Section 3(b) or Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), such Selling Holder shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of offer or sell any Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes until such Selling Holder receives copies of the amended or supplemented Prospectus contemplated by Section 3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Shelf Registration Statement will be deemed not Company, such Selling Holder shall deliver to have been effectedthe Company all copies in its possession of the Prospectus as amended or supplemented at the time of receipt of such notice.
Appears in 1 contract
Samples: Registration Rights Agreement (Federal Realty Investment Trust)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement, which Shelf Registration Statement by 9:30 a.m. New York time on shall (i) be available for the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part sale of the Registrable Securities held in accordance with the intended method or methods of distribution by such Holder without restrictionthe Selling Holders thereof and (ii) comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule which may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in Section 4(a), clauses (i), (ii) or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to each Holder of Registrable Securities for a period not to exceed sixty days from the date of the Suspension Notice (as defined below) (x) to the extent that the Company is in possession of material non-public information which the Board of Trustees in good xxxxx xxxxx advisable not to disclose or the Company is engaged in active negotiations or planning for a merger or material acquisition or disposition transaction and, in either case, the Company delivers written notice ( a "Suspension Notice") to each such Selling Holder of Registrable Securities ----------------- to the effect that it would be impractical or unadvisable to cause the Shelf Registration Statement or such filings to be made or to become effective or to amend or supplement the Shelf Registration Statement, and that such Selling Holder may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty days from the date of such Suspension Notice; provided, however, that the Company may deliver only two such Suspension Notices -------- ------- within any twelve-month period, or (subject to any suspension period(s)y) pursuant to Rule 415 in the case of the Shelf Registration, unless and until the earlier Company has received a written notice (a "Sale Notice") ----------- from a Selling Holder that such Selling Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Sale Notice; provided, however, that the Company shall have ten business days to prepare and -------- ------- file any such amendment or supplement after receipt of such Sale Notice or such longer period as is reasonably necessary if such preparation and filing are not commercially practicable within ten business days. Once a Selling Holder has delivered a Sale Notice to the Company, such Selling Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify such Selling Holder and the method of distribution in a post- effective amendment to the Shelf Registration Statement or a supplement to the Prospectus. Such Selling Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as such Selling Holder no longer intends to make offers or sales under the Shelf Registration Statement;
(Ac) furnish to each Selling Holder of Registrable Securities, without charge, as many copies of the date Prospectus and any amendment or supplement thereto as of which such Selling Holder may sell all reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Prospectus and any amendment or supplement thereto by each such Selling Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Prospectus or amendment or supplement thereto;
(d) use its best efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as any Holder of Registrable Securities covered by the Shelf Registration Statement without restriction shall reasonably request in writing, keep each such Shelf Registration or limitation pursuant to Rule 144 and without qualification effective during the requirement period the Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by a Holder which has delivered a Sale Notice to the Company, whichever is shorter; provided, however, that in compliance connection therewith, -------- ------- the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly and, if requested by such Holder, confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) the Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) furnish to each Selling Holder shall have of Registrable Securities, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the Selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold all and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such names as the Selling Holders may reasonably request, at least ten business days prior to any sale of Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post- effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by the Selling Holders of Registrable Securities covered and any counsel, accountants or other representatives retained by such Selling Holders all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by such Holders, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such -------- ------- records, documents or information which the Company determines in good faith to be confidential and notifies such Selling Holders, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by such Selling Holders, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the “Required Period”)Selling Holders of Registrable Securities;
(l) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the Shelf Registration Statement;
(n) use its reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earning statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(o) if requested by a Selling Holder or any underwriters engaged by such Selling Holder for purposes of distributing the Registrable Securities, enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other reasonable actions in connection therewith (including those reasonably requested by the underwriters or such Selling Holder) in order to expedite or facilitate the disposition of such Registrable Securities, and in such connection, (i) make such representations and warranties to the underwriters with respect to the business of the Company and the Shelf Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested; (ii) obtain customary opinions of counsel to the Company and updates thereof (which shall be in form and substance reasonably satisfactory to the Selling Holders or to the underwriters and their counsel, as the case may be), addressed to such Selling Holder and, if applicable, each of the underwriters; (iii) use its reasonable best efforts obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company, addressed to cause such Selling Holder and, if applicable, each of the resale prospectus underwriters, such letters to be supplemented in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with any such offerings (in each case, to the extent permitted by any required prospectus supplementapplicable accounting rules and guidelines); provided(iv) if an underwriting agreement is entered into, that a registration the same shall contain indemnification provisions and procedures no less favorable to the underwriters than those set forth in Section 6 hereof and cross indemnification by the underwriters in form and substance as is customary in connection with such offering, in favor of the Company or the Selling Holders, as the case may be; and (v) deliver such documents and certificates as may be reasonably requested by the managing underwriters and their counsel to evidence the continued validity of the representations and warranties made pursuant to clause (i) above of this Section 4(o) and to evidence compliance with any customary conditions contained in the underwriting agreement entered into by the Company. The Company may require each Selling Holder of Registrable Securities to furnish to the Company in writing such information regarding the proposed distribution by such Selling Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3 hereof and this Section 4, each Selling Holder covenants and agrees that (i) it will not offer or sell any Registrable Securities under the Shelf Registration Statement until it has received copies of the Prospectus as then amended or supplemented as contemplated by Section 4(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 4(e); (ii) upon receipt of any notice from the Company contemplated by Section 4(b) (in respect of the occurrence of an event contemplated by clause (x) of Section 4(b)) or Section 4(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 4(e)), such Selling Holder shall not offer or sell any Registrable Securities pursuant to the Shelf Registration Statement until such Selling Holder receives copies of the amended or supplemented Prospectus contemplated by Section 4(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Selling Holder shall deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in such Selling Holder's possession, of the Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by such Selling Holder under the Shelf Registration Statement must be deemed completed within sixty days after the first date on which offers or sales can be made pursuant to have been effected unless clause (i) above, and upon expiration of such sixty-day period, the Selling Holder may not offer or sell any Registrable Securities under the Shelf Registration Statement until it has been declared effective by again complied with the SEC provisions of clause (i) above; (iv) such Holder and has remained effective for any of its officers, directors or affiliates, if any, must comply with the Required Period; further provided, that if an offering provisions of Regulation M under the Exchange Act as applicable to them in connection with sales of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; and (v) such Selling Holder and any of its officers, directors or affiliates, if any, must enter into such written agreements as the Shelf Registration Statement will be deemed not Company shall reasonably request to have been effectedensure compliance with clause (iv) above.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Cabot Industrial Trust)
Shelf Registration Procedures. In connection with any Shelf ----------------------------- Registration contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Purchaser, prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, the Company shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as the Purchaser reasonably may propose and (ii) include the names of the Holders, who propose to sell Transfer Restricted Securities pursuant to the Shelf Registration Statement, as selling securityholders; provided, --------- that the Purchaser and Holders have complied with Section 1(d). ----
(b) The Company shall give written notice to the Registration Statement declared effective by Purchaser and the SEC as soon as practicable, but in no event later than Holders of the date which is: (i) if Transfer Restricted Securities included within the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date coverage of the Shelf Request, or (ii) if the Registration Statement is subject (which notice pursuant to a full review clauses (ii)- (v) hereof shall be accompanied by an instruction to suspend the SEC, ninety (90) calendar days after the date use of the Shelf Request (prospectus until the “Shelf Filing Deadline”). Further, the Company shall:requisite changes have been made):
(i) file when the Shelf Registration Statement or any amendment thereto has been filed with the SEC in accordance with Rule 424 under Commission and when the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement or any post-effective amendment thereto has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbecome effective;
(ii) use its reasonable best efforts to prepare and file with of any request by the SEC such Commission for amendments and post-effective amendments or supplements to the Shelf Registration Statement as may be necessary to keep or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement continuously or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Transfer Restricted Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading, which written notice need not provide any detail as to the nature of such event.
(c) The Company shall make every commercially reasonable effort to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to each Holder of Transfer Restricted Securities included within the coverage of such Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to any suspension period(s)) pursuant the provisions of this Agreement, to Rule 415 until the earlier of (A) the date as of which Holder may sell all use of the Registrable prospectus or any amendment or supplement thereto by each of the selling Holders of the Transfer Restricted Securities in connection with the offering and sale of the Transfer Restricted Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement without restriction or limitation Statement.
(f) Prior to any public offering of the Securities pursuant to Rule 144 the Shelf Registration Statement, the Company shall register or qualify or cooperate with the Holders of the Securities included therein and without their respective counsel in connection with the requirement to be in compliance with Rule 144(c)(1) (registration or any successor thereto) promulgated qualification of the Transfer Restricted Securities for offer and sale under the 1933 Act securities or (B) the date on which Holder shall have sold all "blue sky" laws of such states of the Registrable United States as any Holder of the Securities reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Shelf Registration Statement (the “Required Period”); and
(iii) use its reasonable best efforts to cause the resale prospectus to be supplemented by any required prospectus supplementStatement; provided, however, that the Company shall not be required to (i) -------- ------- qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to the Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a registration reasonable period of time prior to sales of the Securities pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 2(b) above during the period for which the Company is required to maintain an effective Shelf Registration Statement, the Company shall as required hereby prepare and file a post-effective amendment to such Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Securities or purchasers of Securities included within the coverage of such Shelf Registration Statement, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company may delay filing -------- ------- and distributing any such supplement or amendment (and continue the suspension of the use of the related prospectus) if the Company determines in good faith that such supplement or amendment would, in the reasonable judgement of the Company, (i) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company or (ii) involve initial or continuing disclosure obligations that are not in the best interests of the Company's stockholders at such time; provided, further, that neither such delay nor such suspension shall extend for a period of more than 90 consecutive days or an aggregate of 180 days in any twelve-month period. If the Company notifies the Purchaser and the Holders of the Securities in accordance with paragraphs (ii) through (v) of Section 2(b) above to suspend the use of such prospectus until the requisite changes to such prospectus have been made, then the Purchaser and the Holders of the Securities shall suspend use of such prospectus, and the period of effectiveness of such Shelf Registration Statement provided for in Section 1(b) above shall be extended by the number of days from and including the date of the giving of such notice to and including the date when the Purchaser and the Holders of the Securities shall have received such amended or supplemented prospectus pursuant to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration Statement, the Company will provide CUSIP numbers for the Notes and the Conversion Shares registered under the Shelf Registration Statement and provide the Trustee with a certificate for the Notes, in a form eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration to enable the Holders to resell their securities in accordance with this Agreement.
(k) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a ------------------- timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(l) Each Holder agrees, by acquisition of the Securities, that no Holder of Securities shall be entitled to sell any of such Securities pursuant to any Shelf Registration Statement or to receive a prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to and in accordance with Section 1(d) hereof and the information set forth in the next sentence. Each Holder agrees promptly to furnish the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not misleading and any other information regarding such Holder and the distribution of such Securities as the Company may from time to time reasonably request.
(m) In the event of any underwritten public offering, the Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as any managing underwriter of such offering and Holder of the Securities shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration; provided, however, -------- ------- that the Company shall not be required to facilitate an underwritten offering pursuant to a Shelf Registration Statement by any Holders unless the offering relates to at least $20,000,000 principal amount of the Notes or an equivalent number of Conversion Shares (as adjusted for any stock dividends, stock splits and capital changes).
(n) The Company shall not (i) make reasonably available for inspection by any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any agent retained by any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by any such underwriter or agent in connection with the Shelf Registration Statement, in each case, as shall be deemed reasonably necessary to have been effected unless it has been declared effective by enable such persons, to conduct a reasonable investigation within the SEC and has remained effective for meaning of Section 11 of the Required PeriodSecurities Act; further provided, however, -------- ------- that if the foregoing inspection and information gathering shall be coordinated on behalf of the Purchaser by you and the other parties, by one firm of counsel, which firm shall be designated as described in Section 6 hereof.
(o) In the event of an offering underwritten offering, the Company shall cause (i) its counsel to deliver an opinion and updates thereof relating to the Securities in customary form and substance addressed to the managing underwriters thereof and dated, in the case of Registrable the initial opinion, the effective date of such Shelf Registration Statement; (ii) its executive officers and directors to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Securities pursuant and (iii) the independent public accountants for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Transfer Restricted Securities and any underwriter therefor a comfort letter in customary form, type and substance customarily covered in comfort letters in connection with primary underwritten offerings.
(p) The Company shall use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities covered by a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 1 contract
Shelf Registration Procedures. In connection with any Shelf Registration contemplated by Section 4(b) hereof, the following provisions shall apply:
(i) The Company Corporation shall (A) furnish to the Investors and each Holder of Securities, if applicable, prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that the Investors or any Holder of Securities, if applicable, is participating in the Shelf Registration Statement, shall use its best efforts to have reflect in each such document, when so filed with the Registration Statement declared effective by Commission, such comments as such Investors or any Holder of Securities, if applicable, reasonably may propose; and (B) include the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date names of the Shelf Request, or (ii) if the Registration Statement is subject Holders of Securities who propose to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales sell Securities pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep selling security holders.
(ii) he Corporation shall advise (and confirm such advice in writing if requested by the recipient of the advice) the Investors and the Holders of Securities, if applicable:
(A) when the Shelf Registration Statement continuously effective (subject to or any suspension period(s)) pursuant to Rule 415 until amendment thereto has been filed with the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered by Commission and when the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or post-effective amendment thereto has become effective;
(B) of any request by the date on which Holder shall have sold all Commission for amendments or supplements to the Shelf Registration Statement or the prospectus included therein or for additional information;
(C) of the Registrable issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose;
(D) of the receipt of the Corporation or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(E) of the happening of any event that requires the Corporation to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus does not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iii) The Corporation shall use its best efforts to obtain the withdrawal at the earliest possible time of any order suspending the effectiveness of the Shelf Registration Statement.
(iv) The Corporation shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder of Securities so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(v) The Corporation shall deliver to each Holder of Securities included within the coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Corporation consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto included in the Shelf Registration Statement by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by such prospectus or any such amendment or supplement.
(vi) Prior to any public offering of the shares of Securities, pursuant to any Shelf Registration Statement, the Corporation shall register or qualify or cooperate with the Holders of Securities included therein and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or "blue sky" laws of such states of the United States as any Holder of Securities covered by such Shelf Registration Statement; provided, however, that the Corporation shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or (B) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(vii) The Corporation shall cooperate with the Holders of Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders of Securities may request a reasonable period of time prior to sales of the Securities pursuant to such Shelf Registration Statement.
(viii) Upon the occurrence of any event contemplated by paragraphs (B) through (E) of Section 4(c)(ii) above during the period for which the Corporation is required to maintain an effective Shelf Registration Statement, the Corporation shall promptly prepare and file a post-effective amendment to the Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Corporation notifies the Investors and the Holders of Securities then Investors, and the Holders of Securities shall suspend use of such prospectus, and the period of effectiveness of the Shelf Registration Statement provided for in Section 4(b) above shall be extended by the number of days from and including the date of the giving of such notice to and including the date when the Investors and the Holders of Securities shall have received such amended or supplemented prospectus pursuant to this Section 4(c)(viii),
(ix) The Corporation will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) calendar days after the end of a 12-month period (or ninety (90) calendar days, if such period is a fiscal year) beginning with the first month of the Corporation's first fiscal quarter commencing after the effective date of the Registration Statement, which statement shall cover such 12-month period.
(x) Each Holder of Securities to be sold pursuant to the Shelf Registration Statement shall furnish to the Corporation such information regarding the Holder and the distribution of the Securities as the Corporation may from time to time reasonably require and request for inclusion in the Shelf Registration Statement (and shall promptly correct any information previously furnished if the “Required Period”inclusion of such information in such Shelf Registration Statement would be materially misleading), and the Securities of any Holder that unreasonably fails to furnish such information that unreasonably fails to furnish such information within a reasonable time after receiving such request.
(xi) The Corporation shall enter into such customary agreements (including if requested an underwriting agreement in customary form) and take all such other action, if any, as any Holder of Securities shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration. If an underwriting agreement is entered into pursuant to this paragraph, the Corporation shall cause any such agreement to contain indemnification provisions and procedures substantially similar to those set forth in Section 4(i) hereof (or such other procedures acceptable to the Holders of a majority of the aggregate principal amount of the Securities registered under the applicable Shelf Registration Statement and the managing underwriters, if any) with respect to all parties to be indemnified pursuant to Section 4(i) hereof.
(xii) In the case of any Shelf Registration, the Corporation shall (A) make reasonably available for inspection by the Holders of Securities, any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any attorney, accountant or other agent retained by the Holders of Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Corporation and (B) cause the Corporation's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of Securities or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case as shall be reasonably necessary, in the judgment of the Holder or any such underwriter, attorney, accountant or agent referred to in this paragraph, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the Investors and Holders of Securities by one counsel designated by and on behalf of such other parties; and provided, further, that as to any information that is designated in writing by the Corporation, in good faith, as confidential at the time of delivery, such information shall be kept confidential by the Holders of Securities or by any such underwriter, attorney, accountant or other agent.
(xiii) In the case of any Shelf Registration, (A) the Corporation, if reasonably requested by Holders of a majority of the Securities covered by such Shelf Registration, which request shall not be more frequent than once per fiscal quarter, shall cause its counsel to deliver an opinion and updates thereof relating to the Securities in customary form addressed to such Holders of Securities and dated, in the case of the initial opinion, the effective date of such Shelf Registration Statement, provided such opinion is requested prior to the effective date (it being agreed that the matters to be covered by such opinion shall include such matters as are customarily included in opinions requested in underwritten offerings); andand (B) the Corporation, if requested by any majority of Holders of Securities covered by such Shelf Registration, shall cause its officers to execute and deliver all customary documents and certificates and updates thereof reasonably requested.
(iiixiv) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the Rules of Fair Practice and the By-Laws of the National Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Corporation shall use its reasonable best efforts to cause assist such broker-dealer in complying with the resale prospectus requirements of such Rules and By-Laws, including, without limitation, by (A) if such Rules or By-Laws shall so require, engaging a "qualified independent underwriter" (as defined in Section 2720 thereof) to participate in the preparation of the Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Shelf Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (B) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 4(i) hereof, and (C) providing such information to such broker-dealer as may be supplemented required in order for such broker-dealer to comply with the requirements of the Rules of Fair Practice of the NASD.
(xv) The Corporation shall use its best efforts to take all other steps necessary to effect the registration of the Securities covered by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 1 contract
Shelf Registration Procedures. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of In connection with the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherStatement, the Company shall:
(ia) use all reasonable efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (as indicated in the information furnished to the Company pursuant to Section 3(b) hereof), and pursuant thereto the Company will prepare and file with the SEC Commission a Shelf Registration Statement relating to the registration on any appropriate form under the Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution thereof (including, without limitation, one or more underwritten offerings) within the final prospectus time periods and otherwise in accordance with the provisions hereof. The Company shall not be permitted to be used include in connection with sales pursuant to such the Shelf Registration Statement by 9:30 a.m. New York time on any securities other than the Business Day following the date that the Transfer Restricted Securities.
(b) use all reasonable efforts to contact all Holders of Transfer Restricted Securities and notify each Holder of its right to include its Transfer Restricted Securities in such Shelf Registration Statement.
(c) use all reasonable efforts to keep such Shelf Registration Statement has been declared continuously effective by and provide all requisite financial statements for the SEC intended period specified in Section 3 of this Agreement. Upon the occurrence of any event that would cause any such Shelf Registration Statement or the Prospectus contained therein (i) to permit each Holder contain an untrue statement of a material fact or omit to sell, at such Holder’s election, all state any material fact necessary to make the statements therein not misleading or part of the Registrable Securities held by such Holder without restriction;
(ii) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Shelf Registration Statement curing such defect, and, if Commission review is required, use its best efforts to cause such amendment to be declared effective as soon as practicable.
(d) use all reasonable best efforts to prepare and file with the SEC Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep the such Shelf Registration Statement continuously effective (subject for the applicable period set forth in Section 3 hereof, cause the Prospectus to be supplemented by any suspension period(s)) required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 415 until 424 under the earlier of (A) Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the date as of which Holder may sell all Act in a timely manner; and comply with the provisions of the Registrable Securities covered by Act with respect to the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold disposition of all of the Registrable Transfer Restricted Securities covered by such Shelf Registration Statement (during the “Required Period”); and
(iii) use its reasonable best efforts to cause applicable period in accordance with the resale prospectus to be supplemented intended method or methods of distribution by any required prospectus supplement; provided, that a registration pursuant to a the sellers thereof set forth in such Shelf Registration Statement shall not be deemed or supplement to have been effected unless it the Prospectus;
(e) advise the Holders and underwriters, if any, promptly and, if requested by such Persons, confirm such advice in writing, (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been declared effective by the SEC and has remained effective for the Required Period; further providedfiled, that if an offering of Registrable Securities pursuant and, with respect to a any Shelf Registration Statement is terminated or any post-effective amendment thereto, when the same has become effective, (ii) of any request by any stop order, injunction, or other order of the SEC or other governmental agency or court after Commission for amendments to the Shelf Registration Statement becomes effectiveor amendments or supplements to the Prospectus or for additional information relating thereto, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement will be deemed under the Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (iv) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Shelf Registration Statement in order to make the statements therein not misleading, or that requires the making of any additions to have been effected.or changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue
Appears in 1 contract
Samples: Registration Rights Agreement (Cellular Communications International Inc)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3.1 hereof, the Company shall:
(ia) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC Commission, within the time period set forth in Section 3.1(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith;
(b) subject to the last six sentences of this Section 3.2(b) and Section 3.2(i) hereof, (I) prepare and file with the Commission such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective throughout the applicable period; (II) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; and (III) respond as promptly as practicable to any comments received from the Commission with respect to the Shelf Registration Statement continuously effective or any amendment thereto. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in clauses (subject i), (ii) or (iii) in this Section 3.2(b), Section 3.2(d) or Section 3.2(i) with respect to any suspension period(s)the Shelf Registrable Securities (x) pursuant to Rule 415 until the earlier extent that (I) in the reasonable opinion of the Company (A) securities laws applicable to such sale would require the Company to disclose material non-public information ("Non-Public Information") and (B) the disclosure of such Non-Public Information would materially adversely affect the Company; (II) such sale would occur during the measurement period for determining the amount of Common Stock, or the amount of any other consideration the amount of which will be based on the price of the Common Stock, in connection with the acquisition of a business or assets by the Company (a "Measurement Period"); OR (III) the Company is contemplating an underwritten Public Offering of its securities and in the reasonable opinion of the underwriters such sale would interfere materially with such Public Offering by the Company (a "Financing Period"); and the Company delivers written notice to the Holders to the effect that the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed 45 days from the date as of which Holder such notice; PROVIDED, HOWEVER, that the Company may sell all deliver only four such notices under this Section 3.2(b) and Section 3.4(a) within any twelve-month period, PROVIDED, FURTHER, that the Company may deliver only two such notices under this Section 3.2(b) and Section 3.4(a) within the twelve-month period immediately following the expiration of the six-month period referred to in Section 3.3(f)(i) hereof and (y) unless and until the Company has received a written notice (a "Shelf Registration Notice") from any Holder that such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; PROVIDED, HOWEVER, that the Company shall have ten business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. The Measurement Period and Financing Period are collectively referred to herein as the "Restricted Period." In the event the sale by the Holders of Shelf Registrable Securities is deferred because of the existence of Non-Public Information, the Company will notify the Holders promptly upon such Non-Public Information being included by the Company in a filing with the Commission, being otherwise disclosed to the public (other than through the actions of any Holder), or ceasing to be material to the Company, and upon such notice being given by the Company, the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. In the event the sale by the Holders of Shelf Registrable Securities is deferred because it is proposed to be made during a Restricted Period, the Company shall specify, in notifying the Holders of the deferral of its sale, when the Restricted Period will end, at which time the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. If the Restricted Period is thereafter changed, the Company will promptly notify the Holders of such change and upon the end of the Restricted Period as so changed, the Holders will again be entitled to sell Shelf Registrable Securities as provided herein. If an agreement to which such Restricted Period relates is terminated prior to the end of the Restricted Period, the deferral period hereunder shall end immediately and the Company shall promptly notify the Holders of the end of the deferral period;
(c) promptly furnish the Holders after a Holder has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the Commission under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holders after a Holder has delivered a Shelf Registration Notice to the Company, whichever is shorter; PROVIDED, HOWEVER, that in compliance connection therewith, the Company shall not be required to (I) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3.2(d), (II) subject itself to taxation in any such jurisdiction, or (III) file a general consent to service of process in any such jurisdiction;
(e) notify the Holders promptly and, if requested by a Holder, confirm in writing, (I) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (II) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the Commission, (III) (of the issuance by the Commission or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (IV) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (V) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) promptly furnish to the “Required Period”Holders after a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as the Holders may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last six sentences of Section 3.2(b) hereof, upon the occurrence of any event contemplated by clause (v) of Section 3.2(e) hereof, use its reasonable best efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by the Holders after a Holder has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by the Holders all financial and other records, material corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such material records, documents or information reasonably requested by the Holders, counsel, accountants or representatives in connection with the Shelf Registration Statement; PROVIDED, HOWEVER, that such records, documents or information which the Company determines in good faith to be confidential and notifies the Holders, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by the Holders, counsel, accountants or representatives unless (I) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (II) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of the Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holders; and
(iiil) use its reasonable best efforts to cause the resale prospectus all Shelf Registrable Securities to be supplemented listed on the New York Stock Exchange from and after the time the Shelf Registration Statement is declared effective. The Company may require the Holders to furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that the Holders as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3.1 hereof and this Section 3.2, the Holders covenant and agree that (I) they will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until a Holder has provided a Shelf Registration Notice pursuant to Section 3.2(b) and have received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3.2(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3.2(e); (II) upon receipt of any notice from the Company contemplated by Section 3.2(b) or Section 3.2(e) (in respect of the occurrence of an event contemplated therein), the Holders shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of offer or sell any Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes until the Holders receive copies of the supplemented or amended Shelf Prospectus contemplated by Section 3.2(i) hereof and receive notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holders will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holders' possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (III) upon the expiration of 60 days after the first date on which offers or sales can be made pursuant to clause (i) above, the Holders will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until they have again complied with the provisions of clause (i) above; (iv) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will be deemed not comply with the provisions of Regulation M under the Exchange Act as applicable to have been effectedthem in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; (V) each Holder and any of such Holder's partners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement; and (VI) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will enter into such written agreements as the Company shall reasonably request to ensure compliance with clauses (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Shelf Registration Procedures. In connection with any Shelf ----------------------------- Registration contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Purchaser, prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, the Company shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as the Purchaser reasonably may propose and (ii) include the names of the Holders, who propose to sell Transfer Restricted Notes pursuant to the Shelf Registration Statement, as selling securityholders; provided, --------- that the Purchaser and Holders have complied with Section 1(d). ----
(b) The Company shall give written notice to the Registration Statement declared effective by Purchaser and the SEC as soon as practicable, but in no event later than Holders of the date which is: (i) if Transfer Restricted Notes included within the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date coverage of the Shelf Request, or (ii) if the Registration Statement is subject (which notice pursuant to a full review clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the SEC, ninety (90) calendar days after the date use of the Shelf Request (prospectus until the “Shelf Filing Deadline”). Further, the Company shall:requisite changes have been made):
(i) file when the Shelf Registration Statement or any amendment thereto has been filed with the SEC in accordance with Rule 424 under Commission and when the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement or any post-effective amendment thereto has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbecome effective;
(ii) use its reasonable best efforts to prepare and file with of any request by the SEC such Commission for amendments and post-effective amendments or supplements to the Shelf Registration Statement as may be necessary to keep or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement continuously effective or the initiation of any proceedings for that purpose;
(subject to any suspension period(s)iv) pursuant to Rule 415 until the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Transfer Restricted Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading, which written notice need not provide any detail as to the nature of such event.
(c) The Company shall make every commercially reasonable effort to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Notes included within the coverage of the Shelf Registration, without restriction charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to each Holder of Transfer Restricted Notes included within the coverage of such Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or limitation supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Transfer Restricted Notes in connection with the offering and sale of the Transfer Restricted Notes covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
(f) Prior to any public offering of the Notes pursuant to Rule 144 the Shelf Registration Statement, the Company shall register or qualify or cooperate with the Holders of the Notes included therein and without their respective counsel in connection with the requirement to be in compliance with Rule 144(c)(1) (registration or any successor thereto) promulgated qualification of the Transfer Restricted Notes for offer and sale under the 1933 Act securities or (B) the date on which Holder shall have sold all "blue sky" laws of such states of the Registrable Securities United States as any Holder of the Notes reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Notes covered by such Shelf Registration Statement (the “Required Period”); and
(iii) use its reasonable best efforts to cause the resale prospectus to be supplemented by any required prospectus supplementStatement; provided, however, that the -------- ------- Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Notes to facilitate the timely preparation and delivery of certificates representing the Notes to be sold pursuant to the Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a registration reasonable period of time prior to sales of the Notes pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 2(b) above during the period for which the Company is required to maintain an effective Shelf Registration Statement, the Company shall as required hereby prepare and file a post-effective amendment to such Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Notes or purchasers of Notes included within the coverage of such Shelf Registration Statement, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company may delay filing -------- ------- and distributing any such supplement or amendment (and continue the suspension of the use of the related prospectus) if the Company determines in good faith that such supplement or amendment would, in the reasonable judgement of the Company, (i) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company or (ii) involve initial or continuing disclosure obligations that are not in the best interests of the Company's stockholders at such time; provided, further, that neither such delay nor such suspension shall extend for a period of more than 90 consecutive days or an aggregate of 180 days in any twelve-month period. If the Company notifies the Purchaser and the Holders of the Notes in accordance with paragraphs (ii) through (v) of Section 2(b) above to suspend the use of such prospectus until the requisite changes to such prospectus have been made, then the Purchaser and the Holders of the Notes shall suspend use of such prospectus, and the period of effectiveness of such Shelf Registration Statement provided for in Section 1(b) above shall be extended by the number of days from and including the date of the giving of such notice to and including the date when the Purchaser and the Holders of the Notes shall have received such amended or supplemented prospectus pursuant to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration Statement, the Company will provide CUSIP numbers for the Notes registered under the Shelf Registration Statement and provide the Trustee with a certificate for the Notes, in a form eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration to enable the Holders to resell their securities in accordance with this Agreement.
(k) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a ------------------- timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(l) Each Holder agrees, by acquisition of the Notes, that no Holder of Notes shall be entitled to sell any of such Notes pursuant to any Shelf Registration Statement or to receive a prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to and in accordance with Section 1(d) hereof and the information set forth in the next sentence. Each Holder agrees promptly to furnish the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not misleading and any other information regarding such Holder and the distribution of such Notes as the Company may from time to time reasonably request.
(m) In the event of any underwritten public offering, the Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as any managing underwriter of such offering and Holder of the Notes shall reasonably request in order to facilitate the disposition of the Notes pursuant to any Shelf Registration; provided, however, that the -------- ------- Company shall not be required to facilitate an underwritten offering pursuant to a Shelf Registration Statement by any Holders unless the offering relates to at least $10,000,000 principal amount of the Notes.
(n) The Company shall not (i) make reasonably available for inspection by any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any agent retained by any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by any such underwriter or agent in connection with the Shelf Registration Statement, in each case, as shall be deemed reasonably necessary to have been effected unless it has been declared effective by enable such persons, to conduct a reasonable investigation within the SEC and has remained effective for meaning of Section 11 of the Required PeriodSecurities Act; further provided, however, -------- ------- that if the foregoing inspection and information gathering shall be coordinated on behalf of the Purchaser by you and the other parties, by one firm of counsel, which firm shall be designated as described in Section 6 hereof.
(o) In the event of an offering underwritten offering, the Company shall cause (i) its counsel to deliver an opinion and updates thereof relating to the Notes in customary form and substance addressed to the managing underwriters thereof and dated, in the case of Registrable Securities pursuant the initial opinion, the effective date of such Shelf Registration Statement; (ii) its executive officers and directors to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Notes and (iii) the independent public accountants for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Transfer Restricted Notes and any underwriter therefor a comfort letter in customary form, type and substance customarily covered in comfort letters in connection with primary underwritten offerings.
(p) The Company shall use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Notes covered by a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 1 contract
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 3 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Lichtin Holders covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the Shelf such Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Lichtin Holders covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Lichtin Holders to the effect that the Lichtin Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed thirty (30) days from the date of such notice; provided, however, that the -------- ------- Company may deliver only two such notices within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Lichtin Holders that they intend to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; provided, however, that the Company -------- ------- shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Lichtin Holders have delivered a Shelf Registration Notice to the Company, each Lichtin Holder covered thereby shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Such Lichtin Holders also shall notify the Company in writing upon completion of such offer or sale or at such time as such Lichtin Holders no longer intend to make offers or sales under the Shelf Registration Statement;
(c) after the Lichtin Holders have delivered a Shelf Registration Notice to the Company, furnish each Lichtin Holder covered thereby, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Lichtin Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Lichtin Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Lichtin Holders after they have delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in compliance connection -------- ------- therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Lichtin Holders promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the “Required Period”Lichtin Holders have delivered a Shelf Registration Notice to the Company, furnish to each Lichtin Holder covered thereby, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with each selling Lichtin Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as each Lichtin Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Lichtin Holders have provided a Shelf Registration Notice to the Company, make available for inspection by each Lichtin Holder covered thereby and any counsel, accountants or other representatives retained by such Lichtin Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by such Lichtin Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or -------- ------- information which the Company determines in good faith to be confidential and notifies such Lichtin Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by such Lichtin Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to each Lichtin Holder covered thereby after the Lichtin Holders have provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its reasonable best efforts to cause make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require each Lichtin Holder to be supplemented furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that such Lichtin Holder as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3 hereof and this Section 4, each Lichtin Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 4(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 4(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 4(e); (ii) upon receipt of any notice from the Company contemplated by Section 4(b) or Section 4(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 4(e)), such Lichtin Holder shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until such Lichtin Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Lichtin Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in such Lichtin Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by such Lichtin Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, such Lichtin Holder will not be deemed to have been effected unless offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has been declared effective by again complied with the SEC provisions of clause (i) above; (iv) such Lichtin Holder and has remained effective for any of its beneficial owners, officers, directors or affiliates, if any, will comply with the Required Period; further provided, that if an offering provisions of Rule 10b-6 and 10b-7 under the Exchange Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; (v) such Lichtin Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement Statement; and (vi) such Lichtin Holder and any of its beneficial owners, officers, directors or affiliates, if any, will be deemed not enter into such written agreements as the Company shall reasonably request to have been effectedensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Weeks Corp)
Shelf Registration Procedures. The Company shall use its best efforts to have In accordance with the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date registration obligations of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherCompany under Sections 2.1 hereof, the Company shallwill, as applicable:
(ia) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sellas promptly as reasonably practicable, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and or post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective during the Effectiveness Period (subject to any suspension period(s)) pursuant to Rule 415 until the earlier of (A) the date except as of which Holder may sell all of the Registrable Securities covered by the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (the “Required Period”otherwise set forth herein); and
(iii) use its reasonable best efforts to and cause the resale prospectus related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act;
(b) at least two days prior to the filing of the Shelf Registration Statement, or any Prospectus, amendment or supplement thereto, furnish a copy thereof to the Stockholder or its counsel;
(c) if applicable, use commercially reasonable efforts to register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Stockholder reasonably requests and keep such registration or qualification effective during the Effectiveness Period, and do any and all other acts and things that may be reasonably necessary or advisable to enable the Stockholder to consummate the disposition in such jurisdictions of the Registrable Securities; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this clause, (ii) subject itself to taxation in any such jurisdiction, (iii) consent to general service of process in any such jurisdiction or (iv) comply with requirements under so-called “fair, just and equitable standards” under state securities laws;
(d) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of such Shelf Registration Statement or the qualification of the Registrable Securities in any jurisdiction described in Section 2.2(d) hereof or the initiation of any proceedings for that purpose;
(e) file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder to make available adequate current public information with respect to the Company meeting the current public information requirements of Rule 144(c) under the Securities Act, to the extent required to enable the Stockholder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemption provided by Rule 144;
(f) notify the Stockholder, at any time that a registration pursuant prospectus covered by the Shelf Registration Statement is required to be delivered under the Securities Act, of the happening of any event of which it has knowledge and as a result of which the prospectus included in the Shelf Registration Statement as then in effect would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and, at the request of the Stockholder, the Company will promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the Stockholder, such prospectus, as so amended or supplemented, will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances then existing; provided, however, that at any time, upon written notice to the Stockholder and for a period not to exceed 90 days in the aggregate during the Effectiveness Period (the “Suspension Period”), the Company may suspend the use or effectiveness of a Shelf Registration Statement shall (and the Stockholder hereby agrees not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of offer or sell any Registrable Securities pursuant to such registration statement during the Suspension Period) if the Company reasonably believes that there is or may be in existence material nonpublic information, developments or events (including, but not limited to, a Shelf Registration Statement is terminated by any stop orderpending or contemplated merger or acquisition, injunction, disposition or other order material transaction or similar event) involving the Company, the failure of which to be disclosed in the SEC prospectus included in the registration statement could constitute a material misstatement or other governmental agency or court after omission. If so directed by the Company, the Stockholder shall not offer to sell any Registrable Securities pursuant to the Shelf Registration Statement becomes effectiveduring the period in which the delay or suspension is in effect after receiving notice of such delay or suspension (and, if required, until the Stockholder receives copies of the supplemented or amended Prospectus). The Company covenants and agrees that it shall not deliver such notice with respect to the Suspension Period unless Company employees, officers and directors and any other holders of registration rights with respect to the Company’s Common Stock are also prohibited by the Company for the duration of such Suspension Period from effecting any public sales of shares of Common Stock beneficially owned by them, if such holders of registration rights sell pursuant to a registration statement;
(g) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc.;
(h) cause all securities covered by such Shelf Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed and to be qualified for trading on each system on which similar securities issued by the Company are from time to time qualified;
(i) provide a transfer agent and registrar for all securities covered by the Shelf Registration Statement not later than the initial effective date of the Shelf Registration Statement and thereafter maintain such a transfer agent and registrar; and
(j) take reasonable efforts to prevent the entry of any stop order suspending the effectiveness of a registration statement, and upon the issuance of any stop order suspending the effectiveness of the Shelf Registration Statement, or of any order suspending or preventing the use of the Prospectus or suspending the qualification of any securities included in the Shelf Registration Statement for sale in any jurisdiction, the Company will be deemed not use commercially reasonable efforts promptly to have been effectedobtain the withdrawal of such order.
Appears in 1 contract
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 3 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holder covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holder covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holder to the effect that the Holder may not make offers or sales under the Shelf Registration Statement for a period not to exceed ninety (90) days from the date of such notice; PROVIDED, HOWEVER, that the Company may deliver only two such notices within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holder that it intends to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; PROVIDED, HOWEVER, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holder has delivered a Shelf Registration Notice to the Company, the Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. The Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as the Holder no longer intends to make offers or sales under the Shelf Registration Statement;
(c) after the Holder has delivered a Shelf Registration Notice to the Company, furnish the Holder, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holder of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holder shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holder after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; PROVIDED, HOWEVER, that in compliance connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holder promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the “Required Period”Holder has delivered a Shelf Registration Notice to the Company, furnish to the Holder covered thereby, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as the Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holder has provided a Shelf Registration Notice to the Company, make available for inspection by the Holder covered thereby and any counsel, accountants or other representatives retained by the Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by such Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; PROVIDED, HOWEVER, that such records, documents or information which the Company determines in good faith to be confidential and notifies the Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by the Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holder covered thereby after the Holder has provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its reasonable best efforts to cause make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require the Holder to be supplemented furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that such Holder as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3 hereof and this Section 4, the Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 4(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 4(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 4(e); (ii) upon receipt of any notice from the Company contemplated by Section 4(b) or Section 4(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 4(e)), the Holder shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until such Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in such Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by the Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, the Holder will not be deemed to have been effected unless offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has been declared effective again complied with the provisions of clause (i) above; (iv) the Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC and has remained effective for the Required Period; further provided, that if an offering as applicable to them in connection with sales of Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; (v) the Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement Statement; and (vi) the Holder and any of its beneficial owners, officers, directors or affiliates, if any, will be deemed not enter into such written agreements as the Company shall reasonably request to have been effectedensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Duke Realty Investments Inc)
Shelf Registration Procedures. In connection with any Shelf Registration contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Purchaser, prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, the Company shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as the Purchaser reasonably may propose and (ii) include the names of the Holders, who propose to sell Transfer Restricted Notes pursuant to the Shelf Registration Statement, as selling securityholders; PROVIDED, THAT the Purchaser and Holders have complied with Section 1(d).
(b) The Company shall give written notice to the Registration Statement declared effective by Purchaser and the SEC as soon as practicable, but in no event later than Holders of the date which is: (i) if Transfer Restricted Notes included within the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date coverage of the Shelf Request, or (ii) if the Registration Statement is subject (which notice pursuant to a full review clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the SEC, ninety (90) calendar days after the date use of the Shelf Request (prospectus until the “Shelf Filing Deadline”). Further, the Company shall:requisite changes have been made):
(i) file when the Shelf Registration Statement or any amendment thereto has been filed with the SEC in accordance with Rule 424 under Commission and when the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement or any post-effective amendment thereto has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbecome effective;
(ii) use its reasonable best efforts to prepare and file with of any request by the SEC such Commission for amendments and post-effective amendments or supplements to the Shelf Registration Statement as may be necessary to keep or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement continuously effective or the initiation of any proceedings for that purpose;
(subject to any suspension period(s)iv) pursuant to Rule 415 until the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Transfer Restricted Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading, which written notice need not provide any detail as to the nature of such event.
(c) The Company shall make every commercially reasonable effort to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Notes included within the coverage of the Shelf Registration, without restriction charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to each Holder of Transfer Restricted Notes included within the coverage of such Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or limitation supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Transfer Restricted Notes in connection with the offering and sale of the Transfer Restricted Notes covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
(f) Prior to any public offering of the Notes pursuant to Rule 144 the Shelf Registration Statement, the Company shall register or qualify or cooperate with the Holders of the Notes included therein and without their respective counsel in connection with the requirement to be in compliance with Rule 144(c)(1) (registration or any successor thereto) promulgated qualification of the Transfer Restricted Notes for offer and sale under the 1933 Act securities or (B) the date on which Holder shall have sold all "blue sky" laws of such states of the Registrable Securities United States as any Holder of the Notes reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Notes covered by such Shelf Registration Statement Statement; PROVIDED, HOWEVER, that the Company shall not be required to (the “Required Period”); andi) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(iiig) use its reasonable best efforts The Company shall cooperate with the Holders of the Notes to cause facilitate the resale prospectus timely preparation and delivery of certificates representing the Notes to be supplemented sold pursuant to the Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Notes pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 2(b) above during the period for which the Company is required to maintain an effective Shelf Registration Statement, the Company shall as required hereby prepare and file a post-effective amendment to such Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Notes or purchasers of Notes included within the coverage of such Shelf Registration Statement, the prospectus supplementwill 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; PROVIDED, HOWEVER, that the Company may delay filing and distributing any such supplement or amendment (and continue the suspension of the use of the related prospectus) if the Company determines in good faith that such supplement or amendment would, in the reasonable judgement of the Company, (i) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company or (ii) involve initial or continuing disclosure obligations that are not in the best interests of the Company's stockholders at such time; provided, further, that neither such delay nor such suspension shall extend for a registration period of more than 90 consecutive days or an aggregate of 180 days in any twelve-month period. If the Company notifies the Purchaser and the Holders of the Notes in accordance with paragraphs (ii) through (v) of Section 2(b) above to suspend the use of such prospectus until the requisite changes to such prospectus have been made, then the Purchaser and the Holders of the Notes shall suspend use of such prospectus, and the period of effectiveness of such Shelf Registration Statement provided for in Section 1(b) above shall be extended by the number of days from and including the date of the giving of such notice to and including the date when the Purchaser and the Holders of the Notes shall have received such amended or supplemented prospectus pursuant to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration Statement, the Company will provide CUSIP numbers for the Notes registered under the Shelf Registration Statement and provide the Trustee with a certificate for the Notes, in a form eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration to enable the Holders to resell their securities in accordance with this Agreement.
(k) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(l) Each Holder agrees, by acquisition of the Notes, that no Holder of Notes shall be entitled to sell any of such Notes pursuant to any Shelf Registration Statement or to receive a prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to and in accordance with Section 1(d) hereof and the information set forth in the next sentence. Each Holder agrees promptly to furnish the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not misleading and any other information regarding such Holder and the distribution of such Notes as the Company may from time to time reasonably request.
(m) In the event of any underwritten public offering, the Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as any managing underwriter of such offering and Holder of the Notes shall reasonably request in order to facilitate the disposition of the Notes pursuant to any Shelf Registration; PROVIDED, HOWEVER, that the Company shall not be required to facilitate an underwritten offering pursuant to a Shelf Registration Statement by any Holders unless the offering relates to at least $10,000,000 principal amount of the Notes.
(n) The Company shall not (i) make reasonably available for inspection by any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any agent retained by any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by any such underwriter or agent in connection with the Shelf Registration Statement, in each case, as shall be deemed reasonably necessary to have been effected unless it has been declared effective by enable such persons, to conduct a reasonable investigation within the SEC and has remained effective for meaning of Section 11 of the Required PeriodSecurities Act; further providedPROVIDED, HOWEVER, that if the foregoing inspection and information gathering shall be coordinated on behalf of the Purchaser by you and the other parties, by one firm of counsel, which firm shall be designated as described in Section 6 hereof.
(o) In the event of an offering underwritten offering, the Company shall cause (i) its counsel to deliver an opinion and updates thereof relating to the Notes in customary form and substance addressed to the managing underwriters thereof and dated, in the case of Registrable Securities pursuant the initial opinion, the effective date of such Shelf Registration Statement; (ii) its executive officers and directors to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Notes and (iii) the independent public accountants for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Transfer Restricted Notes and any underwriter therefor a comfort letter in customary form, type and substance customarily covered in comfort letters in connection with primary underwritten offerings.
(p) The Company shall use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Notes covered by a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 1 contract
Shelf Registration Procedures. The Company (a) During the Required Period, any Holder shall use be entitled, subject to the remainder of this Section 3.2, to register all or any part of its best efforts Registrable Securities for sale pursuant to have the Shelf Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject and to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, sell all or any part of the Registrable Securities held by registered on behalf of such Holder without restriction;
pursuant to the Shelf Registration Statement (ii“Holder Shelf Offering”). Notwithstanding any other provision of this Agreement, no Holder may include any of its Registrable Securities in a Holder Shelf Offering pursuant to this Agreement unless the Holder shall provide to the Company a fully completed notice and questionnaire in substantially the form set forth in Exhibit A hereto (the “Questionnaire”) and such other information in writing as may be reasonably requested by the Company pursuant to Section 7.2 (the “Selling Holder Information”). In order to be named as a selling securityholder in the Shelf Registration Statement or Prospectus at the time it initially becomes effective under the Securities Act, each Holder must no later than three Business Days prior to the Effective Date of the Shelf Registration Statement, which will be at least 15 days following notice by the Company of the expected initial Effective Date (the “Company Registration Notice”), furnish in writing the completed Questionnaire and such other Selling Holder Information that the Company may reasonably request in writing, if any, to the Company. The Company Registration Notice shall set forth (1) the expected Effective Date of the Shelf Registration Statement and (2) the date by which Holders must return a completed Questionnaire in order to be named as selling securityholders in the Shelf Registration Statement. In addition, if such Company Registration Notice is given prior to the effective date of the Amended Plan, then the Company shall provide the following information to the Holders on or prior to five (5) Business Days prior to the Effective Date of the Shelf Registration Statement: (a) for each class under the Amended Plan receiving shares of New Common Stock, the approximate number of shares of New Common Stock that a holder of $1,000 in Allowed Claims (as defined in the Amended Plan) of such class would receive on the effective date of the Amended Plan and (b) for each series of notes under the Prepetition Indenture (as defined in the Amended Plan), the approximate number of shares of New Common Stock that a holder of $1,000 in principal amount of such series would receive on the effective date of the Amended Plan. The Company shall include in the Shelf Registration Statement the information from the completed Questionnaire and such other Selling Holder Information, if any, received by the Company at least three Business Days prior to the initial Effective Date of the Shelf Registration Statement and the Prospectus, as necessary in a manner so that upon such effectiveness of the Shelf Registration Statement the Holder shall be named as a selling securityholder and be permitted to deliver (or be deemed to deliver) such Prospectus to purchasers of the Registrable Securities in accordance with applicable law. From and after the date that the Shelf Registration Statement initially becomes effective, upon receipt of a completed Questionnaire (including any updated Questionnaire) and such other Selling Holder Information (including any updated Selling Holder Information) that the Company may reasonably request in writing (including any amendments to any prior Questionnaire or Selling Holder Information), if any, but in any event within 10 Business Days after the Company receives the completed Questionnaire and such other Selling Holder Information, if any, the Company shall use its reasonable best efforts to prepare and file with the SEC such any amendments and post-effective amendments or supplements to the Shelf Registration Statement or Prospectus or the documents incorporated by reference therein necessary for such Holder to be named as may a selling securityholder and permit such Holder to deliver (or be necessary deemed to keep the Shelf Registration Statement continuously effective (subject to any suspension period(s)) pursuant to Rule 415 until the earlier of (Adeliver) the date as of which Holder may sell all Prospectus to purchasers of the Registrable Securities covered (subject to the Company’s rights during a Blackout Period). Holders that do not deliver a completed written Questionnaire and such other information, as provided for in this Section 3.2(a), shall not be named as selling securityholders in the Prospectus until such Holder delivers such information and the appropriate notice and other periods called for by this Agreement shall have elapsed. If the Company shall file a post-effective amendment to the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder Statement, it shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (the “Required Period”); and
(iii) use its reasonable best efforts to cause the resale prospectus such post-effective amendment to be supplemented by declared effective under the Securities Act as promptly as is reasonably practicable and notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any required prospectus supplement; provided, that a registration post-effective amendment filed pursuant to this Article III. If such Selling Holder Information is delivered during a Blackout Period, the Company shall so inform the Holder delivering such Selling Holder Information and shall take the actions set forth in this Section 3.2(a) upon expiration of the Blackout Period as though such Holder’s Selling Holder Information had been delivered on the expiration date of such Blackout Period.
(b) Any Holder may, by written notice to the Company, request that the Company take any commercially reasonable steps necessary to assist and cooperate with such Holder to facilitate a Holder Shelf Offering, including by amending the Shelf Registration Statement and/or supplementing the Prospectus, subject to the provisions of this Agreement. Such written notice shall not be deemed to have been effected unless it has been declared effective by specify the SEC and has remained effective for the Required Period; further provided, that if an offering number of shares of Registrable Securities pursuant proposed to a Shelf Registration Statement is terminated by be sold and shall also specify the intended method of disposition thereof.
(c) At any stop order, injunction, or other order of the SEC or other governmental agency or court time and from time to time after the Shelf Registration Statement becomes effective, any Holder may request in writing that the Company file a supplement to the Prospectus, or to the extent that it may be required, a post-effective amendment to the Shelf Registration Statement, in order to update such Holder’s Selling Holder Information (which written request shall be addressed to the Company, shall state that the request is for a supplement or post-effective amendment pursuant to this Section 3.2(c) and shall specify the Holder’s updated Selling Holder Information). The Company shall file a supplement or post-effective amendment covering such requesting Holder’s or Holders’ Registrable Securities requested to be registered as promptly as practicable after receipt of such request.
(d) No Person, other than the Holders as contemplated by this Agreement and Monsanto Company as contemplated by the Shelf Registration Statement will and the Amended Plan, shall be deemed not entitled to have been effectedbe named as a selling securityholder in the Shelf Registration Statement or include any securities to be sold using the Shelf Registration Statement or the Prospectus.
Appears in 1 contract
Shelf Registration Procedures. In connection with any Shelf Registration contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Purchaser, prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, the Company shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as the Purchaser reasonably may propose and (ii) include the names of the Holders, who propose to sell Transfer Restricted Notes pursuant to the Shelf Registration Statement, as selling securityholders; PROVIDED, THAT the Purchaser and Holders have complied with Section 1(d).
(b) The Company shall give written notice to the Registration Statement declared effective by Purchaser and the SEC as soon as practicable, but in no event later than Holders of the date which is: (i) if Transfer Restricted Notes included within the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date coverage of the Shelf Request, or (ii) if the Registration Statement is subject (which notice pursuant to a full review clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the SEC, ninety (90) calendar days after the date use of the Shelf Request (prospectus until the “Shelf Filing Deadline”). Further, the Company shall:requisite changes have been made):
(i) file when the Shelf Registration Statement or any amendment thereto has been filed with the SEC in accordance with Rule 424 under Commission and when the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement or any post-effective amendment thereto has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbecome effective;
(ii) use its reasonable best efforts to prepare and file with of any request by the SEC such Commission for amendments and post-effective amendments or supplements to the Shelf Registration Statement as may be necessary to keep or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement continuously effective or the initiation of any proceedings for that purpose;
(subject to any suspension period(s)iv) pursuant to Rule 415 until the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Transfer Restricted Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading, which written notice need not provide any detail as to the nature of such event.
(c) The Company shall make every commercially reasonable effort to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Notes included within the coverage of the Shelf Registration, without restriction charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to each Holder of Transfer Restricted Notes included within the coverage of such Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or limitation supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Transfer Restricted Notes in connection with the offering and sale of the Transfer Restricted Notes covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
(f) Prior to any public offering of the Notes pursuant to Rule 144 the Shelf Registration Statement, the Company shall register or qualify or cooperate with the Holders of the Notes included therein and without their respective counsel in connection with the requirement to be in compliance with Rule 144(c)(1) (registration or any successor thereto) promulgated qualification of the Transfer Restricted Notes for offer and sale under the 1933 Act securities or (B) the date on which Holder shall have sold all "blue sky" laws of such states of the Registrable Securities United States as any Holder of the Notes reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Notes covered by such Shelf Registration Statement Statement; PROVIDED, HOWEVER, that the Company shall not be required to (the “Required Period”); andi) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(iiig) use its reasonable best efforts The Company shall cooperate with the Holders of the Notes to cause facilitate the resale prospectus timely preparation and delivery of certificates representing the Notes to be supplemented sold pursuant to the Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Notes pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 2(b) above during the period for which the Company is required to maintain an effective Shelf Registration Statement, the Company shall as required hereby prepare and file a post-effective amendment to such Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Notes or purchasers of Notes included within the coverage of such Shelf Registration Statement, the prospectus supplementwill 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; PROVIDED, HOWEVER, that the Company may delay filing and distributing any such supplement or amendment (and continue the suspension of the use of the related prospectus) if the Company determines in good faith that such supplement or amendment would, in the reasonable judgement of the Company, (i) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company or (ii) involve initial or continuing disclosure obligations that are not in the best interests of the Company's stockholders at such time; provided, further, that neither such delay nor such suspension shall extend for a registration period of more than 90 consecutive days or an aggregate of 180 days in any twelve-month period. If the Company notifies the Purchaser and the Holders of the Notes in accordance with paragraphs (ii) through (v) of Section 2(b) above to suspend the use of such prospectus until the requisite changes to such prospectus have been made, then the Purchaser and the Holders of the Notes shall suspend use of such prospectus, and the period of effectiveness of such Shelf Registration Statement provided for in Section 1(b) above shall be extended by the number of days from and including the date of the giving of such notice to and including the date when the Purchaser and the Holders of the Notes shall have received such amended or supplemented prospectus pursuant to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration Statement, the Company will provide CUSIP numbers for the Notes registered under the Shelf Registration Statement and provide the Trustee with a certificate for the Notes, in a form eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration to enable the Holders to resell their securities in accordance with this Agreement.
(k) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(l) Each Holder agrees, by acquisition of the Notes, that no Holder of Notes shall be entitled to sell any of such Notes pursuant to any Shelf Registration Statement or to receive a prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to and in accordance with Section 1(d) hereof and the information set forth in the next sentence. Each Holder agrees promptly to furnish the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not misleading and any other information regarding such Holder and the distribution of such Notes as the Company may from time to time reasonably request.
(m) In the event of any underwritten public offering, the Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as any managing underwriter of such offering and Holder of the Notes shall reasonably request in order to facilitate the disposition of the Notes pursuant to any Shelf Registration; PROVIDED, HOWEVER, that the Company shall not be required to facilitate an underwritten offering pursuant to a Shelf Registration Statement by any Holders unless the offering relates to at least $10,000,000 principal amount of the Notes.
(n) The Company shall not (i) make reasonably available for inspection by any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any agent retained by any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by any such underwriter or agent in connection with the Shelf Xxxxxxxxxxxx Statement, in each case, as shall be deemed reasonably necessary to have been effected unless it has been declared effective by enable such persons, to conduct a reasonable investigation within the SEC and has remained effective for meaning of Section 11 of the Required PeriodSecurities Act; further providedPROVIDED, HOWEVER, that if the foregoing inspection and information gathering shall be coordinated on behalf of the Purchaser by you and the other parties, by one firm of counsel, which firm shall be designated as described in Section 6 hereof.
(o) In the event of an offering underwritten offering, the Company shall cause (i) its counsel to deliver an opinion and updates thereof relating to the Notes in customary form and substance addressed to the managing underwriters thereof and dated, in the case of Registrable Securities pursuant the initial opinion, the effective date of such Shelf Registration Statement; (ii) its executive officers and directors to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Notes and (iii) the independent public accountants for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Transfer Restricted Notes and any underwriter therefor a comfort letter in customary form, type and substance customarily covered in comfort letters in connection with primary underwritten offerings.
(p) The Company shall use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Notes covered by a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 1 contract
Samples: Purchase Agreement (Citigroup Inc)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3.1 hereof, the Company shall:
(ia) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC Commission, within the time period set forth in Section 3.1(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith;
(b) subject to the last six sentences of this Section 3.2(b) and Section 3.2(i) hereof, (I) prepare and file with the Commission such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective throughout the applicable period; (II) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; and (III) respond as promptly as practicable to any comments received from the Commission with respect to the Shelf Registration Statement continuously effective or any amendment thereto. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in clauses (subject i), (ii) or (iii) in this Section 3.2(b), Section 3.2(d) or Section 3.2(i) with respect to any suspension period(s)the Shelf Registrable Securities (x) pursuant to Rule 415 until the earlier extent that (I) in the reasonable opinion of the Company (A) securities laws applicable to such sale would require the Company to disclose material non-public information ("Non-Public Information") and (B) the disclosure of such Non-Public Information would materially adversely affect the Company; (II) such sale would occur during the measurement period for determining the amount of Common Stock, or the amount of any other consideration the amount of which will be based on the price of the Common Stock, in connection with the acquisition of a business or assets by the Company (a "Measurement Period"); OR (III) the Company is contemplating an underwritten Public Offering of its securities and in the reasonable opinion of the underwriters such sale would interfere materially with such Public Offering by the Company (a "Financing Period"); and the Company delivers written notice to the Holders to the effect that the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed 45 days from the date as of which Holder such notice; PROVIDED, HOWEVER, that the Company may sell all deliver only four such notices under this Section 3.2(b) and Section 3.4(a) within any twelve-month period, PROVIDED, FURTHER, that the Company may deliver only two such notices under this Section 3.2(b) and Section 3.4(a) within the twelve-month period immediately following the expiration of the six-month period referred to in Section 3.3(f)(i) hereof and (y) unless and until the Company has received a written notice (a "Shelf Registration Notice") from any Holder that such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; PROVIDED, HOWEVER, that the Company shall have ten business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. The Measurement Period and Financing Period are collectively referred to herein as the "Restricted Period." In the event the sale by the Holders of Shelf Registrable Securities is deferred because of the existence of Non-Public Information, the Company will notify the Holders promptly upon such Non-Public Information being included by the Company in a filing with the Commission, being otherwise disclosed to the public (other than through the actions of any Holder), or ceasing to be material to the Company, and upon such notice being given by the Company, the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. In the event the sale by the Holders of Shelf Registrable Securities is deferred because it is proposed to be made during a Restricted Period, the Company shall specify, in notifying the Holders of the deferral of its sale, when the Restricted Period will end, at which time the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. If the Restricted Period is thereafter changed, the Company will promptly notify the Holders of such change and upon the end of the Restricted Period as so changed, the Holders will again be entitled to sell Shelf Registrable Securities as provided herein. If an agreement to which such Restricted Period relates is terminated prior to the end of the Restricted Period, the deferral period hereunder shall end immediately and the Company shall promptly notify the Holders of the end of the deferral period;
(c) promptly furnish the Holders after a Holder has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the Commission under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holders after a Holder has delivered a Shelf Registration Notice to the Company, whichever is shorter; PROVIDED, HOWEVER, that in compliance connection therewith, the Company shall not be required to (I) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3.2(d), (II) subject itself to taxation in any such jurisdiction, or (III) file a general consent to service of process in any such jurisdiction;
(e) notify the Holders promptly and, if requested by a Holder, confirm in writing, (I) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the Commission, (III) (of the issuance by the Commission or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (IV) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (V) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) promptly furnish to the “Required Period”Holders after a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as the Holders may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last six sentences of Section 3.2(b) hereof, upon the occurrence of any event contemplated by clause (v) of Section 3.2(e) hereof, use its reasonable best efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by the Holders after a Holder has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by the Holders all financial and other records, material corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such material records, documents or information reasonably requested by the Holders, counsel, accountants or representatives in connection with the Shelf Registration Statement; PROVIDED, HOWEVER, that such records, documents or information which the Company determines in good faith to be confidential and notifies the Holders, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by the Holders, counsel, accountants or representatives unless (I) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (II) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of the Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holders; and
(iiil) use its reasonable best efforts to cause the resale prospectus all Shelf Registrable Securities to be supplemented listed on the New York Stock Exchange from and after the time the Shelf Registration Statement is declared effective. The Company may require the Holders to furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that the Holders as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3.1 hereof and this Section 3.2, the Holders covenant and agree that (I) they will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until a Holder has provided a Shelf Registration Notice pursuant to Section 3.2(b) and have received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3.2(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3.2(e); (II) upon receipt of any notice from the Company contemplated by Section 3.2(b) or Section 3.2(e) (in respect of the occurrence of an event contemplated therein), the Holders shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of offer or sell any Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes until the Holders receive copies of the supplemented or amended Shelf Prospectus contemplated by Section 3.2(i) hereof and receive notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holders will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holders' possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (III) upon the expiration of 60 days after the first date on which offers or sales can be made pursuant to clause (i) above, the Holders will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until they have again complied with the provisions of clause (i) above; (iv) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will be deemed not comply with the provisions of Regulation M under the Exchange Act as applicable to have been effectedthem in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; (V) each Holder and any of such Holder's partners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement; and (VI) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will enter into such written agreements as the Company shall reasonably request to ensure compliance with clauses (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights and Voting Agreement (Cornerstone Properties Inc)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject pursuant to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC SEC, within the time period set forth in Section 2(a) hereof, a Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities covered thereby in accordance with the intended method or methods of distribution by the selling Holders thereof and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith.
(b) subject to the last three sentences of this Section 3(b) and to Section 3(i) hereof, (i) prepare and file with the Commission such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep the such Shelf Registration Statement continuously effective for the applicable period; (subject ii) cause each Prospectus to be supplemented by any suspension period(s)) required prospectus supplement, and as so supplemented to be filed pursuant to Rule 415 424 or any similar rule that may be adopted under the Securities Act; (iii) respond promptly to any comments received from the Commission with respect to such Shelf Registration Statement, or any amendment, post-effective amendment or supplement relating thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in clauses (i), (ii) or (iii) above with respect to a particular Holder of Registrable Securities unless and until the earlier Company has received either a written notice (a "Registration No- xxxx") from such Holder that it intends to make offers or sales under such Shelf Registration Statement as specified in such Registration Notice or a written response from such Holder of the type contemplated by Section 2(b); provided, however, that the Company shall have 7 business days to prepare and file any such amendment or supplement after receipt of a Registration Notice. Once a Holder has delivered such a written response or a Registration Notice to the Company, such Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify such Holder and the method of distribution in a post-effective amendment to such Shelf Registration Statement or a supplement to a Prospectus. Offers or sales under such Shelf Registration Statement may be made only during a Sale Period. Such Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holder no longer intends to make offers or sales under such Shelf Registration Statement.
(Ac) furnish to each Holder of Registrable Securities that has delivered a Registration Notice to the date Company, without charge, as many copies of which each applicable Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may sell all reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of such Prospectus, including each preliminary Prospectus, by each such Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by such Prospectus or the preliminary Prospectus.
(d) use its reasonable best efforts to register or qualify the Registrable Securities covered thereby by the time such Shelf Registration Statement is declared effective by the Commission under all applicable state securities or "blue sky" laws of such jurisdictions as any Holder of Registrable Securities covered by such Shelf Registration Statement shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by a Holder that has delivered a Registration Notice to the Company, whichever is shorter, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities then owned by such Holder (after giving effect to the redemption of Partnership Units then held by such Holder); provided, however, that the Company shall not be required (i) to qualify generally to do business in any jurisdiction or to register as a broker or dealer in such jurisdiction where it would not be required so to qualify or register but for this Section 3(d), (ii) to subject itself to taxation in any such jurisdiction or (iii) to submit to the general service of process in any such jurisdiction.
(e) notify each Holder when such Shelf Registration Statement has become effective and notify each Holder of Registrable Securities that has delivered a Registration Notice to the Company promptly and, if requested by such Holder, confirm such advice in writing (i) when any post-effective amendments and supplements to such Shelf Registration Statement become effective, (ii) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (iii) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose and (iv) of the happening of any event during the period such Shelf Registration Statement is effective as a result of which such Shelf Registration Statement or a related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading.
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration Statement at the earliest possible moment.
(g) furnish to each Holder of Registrable Securities covered thereby that has delivered a Registration Notice to the Company, without restriction charge, at least one conformed copy of such Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or limitation exhibits thereto, unless requested).
(h) cooperate with the selling Holders of Registrable Securities covered thereby to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such names as the selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities.
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by Section 3(e)(iv) hereof, use its reasonable best efforts promptly to prepare and file a supplement or prepare, file and obtain effectiveness of a post-effective amendment to such Shelf Registration Statement or a related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) make available for inspection by representatives of the Holders of the Registrable Securities and any counsel or accountant retained by such Holders, all financial and other records, pertinent corporate documents and properties of the Company, and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, counsel or accountant in connection with such Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential, and notifies such representatives, counsel or accountants in writing that such records, documents or information are confidential, shall not be disclosed by the representatives, counsel or accountants unless (i) the disclosure of such records, documents or information is necessary to avoid or correct a material misstatement or omission in such Shelf Registration Statement, (ii) the release of such records, documents or information is ordered pursuant to Rule 144 and without a subpoena or other order from a court of competent jurisdiction or (iii) such records, documents or information have been generally made available to the requirement public otherwise than in violation of this Agreement.
(k) a reasonable time prior to the filing of any Prospectus, any amendment to such Shelf Registration Statement or amendment or supplement to a Prospectus, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holders of Registrable Securities that have provided a Registration Notice to the Company.
(l) use its reasonable best efforts to cause all Registrable Securities to be in compliance with Rule 144(c)(1) (or listed on any successor thereto) promulgated under the 1933 Act or (B) the date securities exchange on which Holder similar securities issued by the Company are then listed.
(m) obtain a CUSIP number for all Registrable Securities, not later than the effective date of such Shelf Registration Statement.
(n) otherwise use its 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 at least 12 months which shall have sold all satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(o) use its reasonable best efforts to cause the Registrable Securities covered by such Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable Holders that have delivered Registration Notices to the Company to consummate the disposition of such Registrable Securities. The Company may require each Holder of Registrable Securities to furnish to the Company in writing such information regarding the proposed distribution by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to any Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, each Holder agrees with the Company that:
(i) it will not offer or sell its Registrable Securities under a Shelf Registration Statement until (A) it has either (1) provided a Registration Notice pursuant to Section 3(b) hereof or (2) had Registrable Securities included in such Shelf Registration Statement at the “Required Period”); time it became effective pursuant to Section 2(b) hereof and (B) it has received copies of the supplemented or amended Prospectus contemplated by Section 3(b) hereof and receives notice that any post-effective amendment has become effective;
(ii) upon receipt of any notice from the Company of the happening of anv event of the kind described in Section 3(b)(iv) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Shelf Registration Statement until such Holder receives copies of the supplemented or amended Prospectus contemplated by Section 3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, 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;
(iii) use all offers and sales under such Shelf Registration Statement shall be completed within forty-five (45) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such forty-five (45) day period the Holder will not offer or sell its reasonable best efforts Registrable Securities under the Shelf Registration Statement until it has again complied with the provisions of clauses (i)(A)(1) and (B) above, except that if the applicable Registration Notice was delivered to cause the resale prospectus to Company at a time which was not part of a Sale Period, such forty-five (45) day period shall be supplemented by any required prospectus supplement; providedthe next succeeding Sale Period;
(iv) if the Company determines in its good faith judgment, after consultation with counsel, that a registration pursuant to the filing of a Shelf Registration Statement shall not be deemed under Section 2 hereof or the use of any Prospectus would require the disclosure of important information which the Company has a bona fide business purpose for preserving as confidential or the disclosure of which would impede the Company's ability to have been effected unless it has been declared effective consummate a significant transaction, upon written notice of such determination by the SEC and has remained effective for Company, the Required Period; further providedrights of the Holders to offer, that if an offering of sell or distribute any Registrable Securities pursuant to a Shelf Registration Statement is terminated by or Prospectus or to require the Company to take action with respect to the registration or sale of any stop order, injunction, or other order of the SEC or other governmental agency or court after the Registrable Securities pursuant to a Shelf Registration Statement becomes effective(including any action contemplated by this Section 3) will be suspended until the date upon which the Company notifies the Holders in writing that suspension of such rights for the grounds set forth in this paragraph is no longer necessary; provided, however, that the Company may not suspend such rights for an aggregate period of more than 90 days in any 12-month period; and
(v) in the case of the registration of any underwitten equity offering proposed by the Company (other than any registration by the Company on Form S-8, or a successor or substantially similar form, of (i) an employee stock option, stock purchase or compensation plan or of securities issued or issuable pursuant to any such plan or (ii) a dividend reinvestment plan), such Holder will agree, if requested in writing by the managing underwriter or underwriters administering such offering, not to effect any offer, sale or distribution of any Registrable Securities (or any option or right to acquire Registrable Securities) (each, a "Transfer") during the period commencing on the 10th day prior to the expected effective date (which date shall be stated in such notice) of the registration statement covering such underwritten primary equity offering or, if such offering shall be a "take-down" from an effective shelf registration statement, the Shelf Registration Statement will 10th day prior to the expected commencement date (which date shall be deemed stated in such notice) of such offering, and ending on the date specified by such managing underwriter in such written request to such Holder; provided, however, that no Holder shall be required to agree not to have been effectedTransfer its Registrable Securities for a period of time which is longer than the greater of 90 days or the period of time for which any senior executive of the Company is required so to agree in connection with such offering. Nothing in this paragraph shall be read to limit the ability of any Holder to redeem its Partnership Units for Common Shares in accordance with the Partnership Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Corporate Office Properties Trust)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holders covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 3(b) and Section 3(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holders covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holders to the effect that the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed forty-five (45) days from the date of such notice; provided, however, that the Company may deliver only two such -------- ------- notices within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holders that they intend to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to -------- ------- prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holders have delivered a Shelf Registration Notice to the Company, each Holder covered thereby shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Such Holders also shall notify the Company in writing upon completion of such offer or sale or at such time as such Holders no longer intend to make offers or sales under the Shelf Registration Statement;
(c) after the Holders have delivered a Shelf Registration Notice to the Company, furnish each Holder covered thereby, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holders after they have delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in compliance connection therewith, the Company -------- ------- shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holders promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the “Required Period”Holders have delivered a Shelf Registration Notice to the Company, furnish to each Holder covered thereby, without charge, at least one conformed copy of the Shelf Registration Statement and any post- effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with each selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as each Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 3(b) or clause (v) of Section 3(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holders have provided a Shelf Registration Notice to the Company, make available for inspection by each Holder covered thereby and any counsel, accountants or other representatives retained by such Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by such Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the -------- ------- Company determines in good faith to be confidential and notifies such Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by such Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) within a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to each Holder covered thereby after the Holders have provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its reasonable best efforts to cause make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require each Holder to be supplemented furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that such Holder as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, each Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(b) or Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), such Holder shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until such Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in such Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by such Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, such Holder will not be deemed to have been effected unless offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has been declared effective again complied with the provisions of clause (i) above; (iv) such Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC and has remained effective for the Required Period; further provided, that if an offering as applicable to them in connection with sales of Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; (v) such Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement Statement; and (vi) such Holder and any of its beneficial owners, officers, directors or affiliates, if any, will be deemed not enter into such written agreements as the Company shall reasonably request to have been effectedensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Shelf Registration Procedures. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of In connection with the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherRegistration, the Company shallfollowing procedures shall apply:
(i) file Seller shall furnish to the Holders, prior to the filing thereof with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sellCommission, at such Holder’s election, all or part a copy of the Registrable Securities held by Shelf Registration Statement, and each amendment thereof and each amendment or supplement, if any, to any prospectus included therein (the "Prospectus") and shall use reasonable efforts to reflect in each such Holder without restriction;document, when so filed with the Commission, such comments as the Holders reasonably may propose, provided that Seller shall not be required to include any particular comment of the Holders.
(ii) use its reasonable best efforts to prepare Seller shall take such action as may be necessary so that (A) the Shelf Registration Statement and file any amendment thereto and any Prospectus and any amendment or supplement thereto (and each report or other document incorporated therein by reference in each case) complies in all material respects with the SEC Securities Act and the Exchange Act and the respective rules and regulations thereunder, (B) the Shelf Registration Statement and any amendment thereto does not, when it becomes effective, 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 not misleading, (C) the Prospectus and any amendment or supplement to such amendments Prospectus, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading, and (D) the Seller complies with Rule 153 of the Securities Act Rules.
(iii) Seller promptly shall advise the Holders in writing: (A) when the Shelf Registration Statement and any amendment thereto has been filed with the Commission and when the Shelf Registration Statement or any post-effective amendment thereto has become effective; (B) of any request by the Commission for amendments or supplements to the Shelf Registration Statement as may be necessary to keep or the Prospectus or for additional information; (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement continuously effective or the initiation of any proceedings for that purpose; (subject to any suspension period(s)D) pursuant to Rule 415 until the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered receipt by Seller of any notification with respect to the suspension of the qualification of the Valhi Units included therein for sale in any jurisdiction or the initiation of any proceeding for such purpose; and (E) of the happening of any event that requires the making of any changes in the Shelf Registration Statement or the Prospectus so that, as of such date, the Shelf Registration Statement and the Prospectus do not contain an untrue statement of a material fact and do not 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 (which advice shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made).
(iv) Seller shall use commercially reasonable efforts to prevent the issuance, and if issued to obtain the withdrawal, of any order suspending the effectiveness of the Shelf Registration Statement at the earliest possible time.
(v) Seller shall furnish to each Holder included within the coverage of the Shelf Registration Statement, without restriction charge, at least one copy of such Shelf Registration Statement and any post-effective amendment thereto (including any reports or limitation other documents incorporated therein by reference), including financial statements and schedules, and, if the Holder so requests in writing, all exhibits (including those incorporated by reference).
(vi) Seller shall, during the Shelf Registration Period, deliver to each Holder of Valhi Units included within the Shelf Registration Statement, without charge, as many copies of the Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Holder may reasonably request; and Seller consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Valhi Units covered by the Prospectus or any amendment or supplement thereto during the Shelf Registration Period.
(vii) Prior to any offering pursuant to Rule 144 the Shelf Registration Statement, Seller shall register or qualify or cooperate with the Holders of Valhi Units included therein and without their respective counsel in connection with the requirement to be in compliance with Rule 144(c)(1) (registration or any successor thereto) promulgated qualification of such Valhi Units for offer and sale under the 1933 Act securities or (B) blue sky laws of such jurisdictions within the date on which Holder shall have sold continental United States as any such Holders reasonably request in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities Valhi Units covered by such Shelf Registration Statement (the “Required Period”)Statement; andPROVIDED, HOWEVER, that Seller will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(iiiviii) use its reasonable best efforts Seller shall cooperate with the Holders to cause facilitate the resale prospectus timely preparation and delivery of certificates representing Valhi Units to be supplemented by any required prospectus supplement; provided, that a registration sold pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectivefree of any restrictive legends and in such permitted denominations and registered in such names as Holders may request in connection with the sale of Valhi Units pursuant to such Shelf Registration Statement.
(ix) Upon the occurrence of any event contemplated by paragraph (iii) above, Seller shall promptly prepare a post-effective amendment to the Shelf Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter delivered to purchasers of the Valhi Units included therein, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If Seller notifies the Holders of the occurrence of any event contemplated by paragraph (iii) above, the Holders shall suspend the use of the Prospectus until the requisite changes to the Prospectus have been made.
(x) Seller may require each Holder selling Valhi Units pursuant to the Shelf Registration Statement to furnish to Seller such information regarding the Holder and the distribution of such Valhi Units as Seller may from time to time reasonably require for inclusion in such Shelf Registration Statement and Seller may exclude from such registration the Valhi Units of any Holder that fails to furnish such information within a reasonable time after receiving such request.
(xi) Seller shall enter into such customary and reasonable agreements (including underwriting agreements in customary form) to take all other appropriate actions reasonably necessary to expedite or facilitate the registration or the disposition of the Valhi Units, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification provisions and procedures substantially identical to those set forth in this paragraph (e) (or such other customary and reasonable provisions and procedures acceptable to such underwriters, if any) with respect to all parties to be indemnified pursuant to this paragraph (e).
(xii) Seller shall (A) make reasonably available for inspection by the Holders whose Valhi Units will be deemed not registered thereunder, any underwriter participating in any disposition pursuant to have been effected.such Shelf Registration Statement, and any attorney, accountant or other agent retained by such Holders or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of Seller and its Subsidiaries;
Appears in 1 contract
Samples: Units Purchase Agreement (U S Restaurant Properties Master L P)
Shelf Registration Procedures. In connection with any Shelf Registration contemplated by Section 5(b) hereof, the following provisions shall apply:
(i) The Company Corporation shall (A) furnish to Investor, each Purchaser, and each Holder of Securities prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that Investor, any Purchaser or any Holder of Securities is participating in the Shelf Registration Statement, shall use its best efforts to have reflect in each such document, when so filed with the Registration Statement declared effective by Commission, such comments as such Investor, Purchaser or any Holder of Securities reasonably may propose; and (B) include the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date names of the Shelf Request, or (ii) if the Registration Statement is subject Holders of Securities who propose to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales sell Securities pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep selling security holders.
(ii) The Corporation shall advise (and confirm such advice in writing if requested by the recipient of the advice) Investor, Purchaser and the Holders of Securities:
(A) when the Shelf Registration Statement continuously effective (subject to or any suspension period(s)) pursuant to Rule 415 until amendment thereto has been filed with the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered by Commission and when the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or post-effective amendment thereto has become effective;
(B) of any request by the date on which Holder shall have sold all Commission for amendments or supplements to the Shelf Registration Statement or the prospectus included therein or for additional information;
(C) of the Registrable issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose;
(D) of the receipt of the Corporation or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(E) of the happening of any event that requires the Corporation to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus does not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iii) The Corporation shall use its best efforts to obtain the withdrawal at the earliest possible time of any order suspending the effectiveness of the Shelf Registration Statement.
(iv) The Corporation shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder of Securities so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(v) The Corporation shall deliver to each Holder of Securities included within the coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Corporation consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto included in the Shelf Registration Statement by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by such prospectus or any such amendment or supplement.
(vi) Prior to any public offering of the shares of Securities, pursuant to any Shelf Registration Statement, the Corporation shall register or qualify or cooperate with the Holders of Securities included therein and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or "blue sky" laws of such states of the United States as any Holder of Securities covered by such Shelf Registration Statement; provided, however, that the Corporation shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or (B) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(vii) The Corporation shall cooperate with the Holders of Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders of Securities may request a reasonable period of time prior to sales of the Securities pursuant to such Shelf Registration Statement.
(viii) Upon the occurrence of any event contemplated by paragraphs (B) through (E) of Section 5(c)(ii) above during the period for which the Corporation is required to maintain an effective Shelf Registration Statement, the Corporation shall promptly prepare and file a post-effective amendment to the Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Corporation notifies Investor, Purchasers and the Holders of Securities then Investor, Purchasers and the Holders of Securities shall suspend use of such prospectus, and the period of effectiveness of the Shelf Registration Statement provided for in Section 5(b) above shall be extended by the number of days from and including the date of the giving of such notice to and including the date when Investor, Purchasers and the Holders of Securities shall have received such amended or supplemented prospectus pursuant to this Section 5(c)(viii).
(ix) The Corporation will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Corporation's first fiscal quarter commencing after the effective date of the Registration Statement, which statement shall cover such 12-month period.
(x) Each Holder of Securities to be sold pursuant to the Shelf Registration Statement shall furnish to the Corporation such information regarding the Holder and the distribution of the Securities as the Corporation may from time to time reasonably require and request for inclusion in the Shelf Registration Statement (and shall promptly correct any information previously furnished if the “Required Period”inclusion of such information in such Shelf Registration Statement would be materially misleading), and the Securities of any Holder that unreasonably fails to furnish such information that unreasonably fails to furnish such information within a reasonable time after receiving such request.
(xi) The Corporation shall enter into such customary agreements (including if requested an underwriting agreement in customary form) and take all such other action, if any, as any Holder of Securities shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration. If an underwriting agreement is entered into pursuant to this paragraph, the Corporation shall cause any such agreement to contain indemnification provisions and procedures substantially similar to those set forth in Section 5(j) hereof (or such other procedures acceptable to the Holders of a majority of the aggregate principal amount of the Securities registered under the applicable Shelf Registration Statement and the managing underwriters, if any) with respect to all parties to be indemnified pursuant to Section 5(j) hereof.
(xii) In the case of any Shelf Registration, the Corporation shall (A) make reasonably available for inspection by the Holders of Securities, any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any attorney, accountant or other agent retained by the Holders of Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Corporation and (B) cause the Corporation's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of Securities or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case as shall be reasonably necessary, in the judgment of the Holder or any such underwriter, attorney, accountant or agent referred to in this paragraph, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the Investor, Purchasers and Holders of Securities by one counsel designated by and on behalf of such other parties and provided, further, that as to any information that is designated in writing by the Corporation, in good faith, as confidential at the time of delivery, such information shall be kept confidential by the Holders of Securities or by any such underwriter, attorney, accountant or other agent.
(xiii) In the case of any Shelf Registration, (A) the Corporation, if reasonably requested by Holders of a majority of the Securities covered by such Shelf Registration, which request shall not be more frequent than once per fiscal quarter, shall cause its counsel to deliver an opinion and updates thereof relating to the Securities in customary form addressed to such Holders of Securities and dated, in the case of the initial opinion, the effective date of such Shelf Registration Statement, provided such opinion is requested prior to the effective date (it being agreed that the matters to be covered by such opinion shall include such matters as are customarily included in opinions requested in underwritten offerings); andand (B) the Corporation, if requested by any majority of Holders of Securities covered by such Shelf Registration, shall cause its officers to execute and deliver all customary documents and certificates and updates thereof reasonably requested.
(iiixiv) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the Rules of Fair Practice and the By-Laws of the National Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Corporation shall use its reasonable best efforts to cause assist such broker-dealer in complying with the resale prospectus requirements of such Rules and By-Laws, including, without limitation, by (A) if such Rules or By-Laws shall so require, engaging a "qualified independent underwriter" (as defined in Section 2720 thereof) to participate in the preparation of the Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Shelf Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (B) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 5(j) hereof and (C) providing such information to such broker-dealer as may be supplemented required in order for such broker-dealer to comply with the requirements of the Rules of Fair Practice of the NASD.
(xv) The Corporation shall use its best efforts to take all other steps necessary to effect the registration of the Securities covered by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 1 contract
Samples: Stockholders & Registration Rights Agreement (Collagenex Pharmaceuticals Inc)
Shelf Registration Procedures. In connection with any Shelf Registration contemplated by Section 4(b) hereof, the following provisions shall apply:
(i) The Company Corporation shall (A) furnish to the Investors and each Holder of Securities, if applicable, prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that the Investors or any Holder of Securities, if applicable, is participating in the Shelf Registration Statement, shall use its best efforts to have reflect in each such document, when so filed with the Registration Statement declared effective by Commission, such comments as such Investors or any Holder of Securities, if applicable, reasonably may propose; and (B) include the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date names of the Shelf Request, or (ii) if the Registration Statement is subject Holders of Securities who propose to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales sell Securities pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep selling security holders.
(ii) The Corporation shall advise (and confirm such advice in writing if requested by the recipient of the advice) the Investors and the Holders of Securities, if applicable: (A) when the Shelf Registration Statement continuously effective (subject to or any suspension period(s)) pursuant to Rule 415 until amendment thereto has been filed with the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered by Commission and when the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or post-effective amendment thereto has become effective; (B) of any request by the date on which Holder shall have sold all Commission for amendments or supplements to the Shelf Registration Statement or the prospectus included therein or for additional information; (C) of the Registrable issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt of the Corporation or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (E) of the happening of any event that requires the Corporation to make changes in the Shelf Registration Statement or the prospectus in order that the Shelf Registration Statement or the prospectus does not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iii) The Corporation shall use its best efforts to obtain the withdrawal at the earliest possible time of any order suspending the effectiveness of the Shelf Registration Statement.
(iv) The Corporation shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder of Securities so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(v) The Corporation shall deliver to each Holder of Securities included within the coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Corporation consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto included in the Shelf Registration Statement by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by such prospectus or any such amendment or supplement.
(vi) Prior to any public offering of the shares of Securities, pursuant to any Shelf Registration Statement, the Corporation shall register or qualify or cooperate with the Holders of Securities included therein and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or "blue sky" laws of such states of the United States as any Holder of Securities covered by such Shelf Registration Statement; provided, however, that the Corporation shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or (B) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(vii) The Corporation shall cooperate with the Holders of Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders of Securities may request a reasonable period of time prior to sales of the Securities pursuant to such Shelf Registration Statement.
(viii) Upon the occurrence of any event contemplated by paragraphs (B) through (E) of Section 4(c)(ii) above during the period for which the Corporation is required to maintain an effective Shelf Registration Statement, the Corporation shall promptly prepare and file a post-effective amendment to the Shelf Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Corporation notifies the Investors and the Holders of Securities then Investors, and the Holders of Securities shall suspend use of such prospectus, and the period of effectiveness of the Shelf Registration Statement provided for in Section 4(b) above shall be extended by the number of days from and including the date of the giving of such notice to and including the date when the Investors and the Holders of Securities shall have received such amended or supplemented prospectus pursuant to this Section 4(c)(viii).
(ix) The Corporation will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act, no later than forty-five (45) calendar days after the end of a 12-month period (or ninety (90) calendar days, if such period is a fiscal year) beginning with the first month of the Corporation's first fiscal quarter commencing after the effective date of the Registration Statement, which statement shall cover such 12-month period.
(x) Each Holder of Securities to be sold pursuant to the Shelf Registration Statement shall furnish to the Corporation such information regarding the Holder and the distribution of the Securities as the Corporation may from time to time reasonably require and request for inclusion in the Shelf Registration Statement (and shall promptly correct any information previously furnished if the “Required Period”inclusion of such information in such Shelf Registration Statement would be materially misleading), and the Securities of any Holder that unreasonably fails to furnish such information that unreasonably fails to furnish such information within a reasonable time after receiving such request.
(xi) The Corporation shall enter into such customary agreements (including if requested an underwriting agreement in customary form) and take all such other action, if any, as any Holder of Securities shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration. If an underwriting agreement is entered into pursuant to this paragraph, the Corporation shall cause any such agreement to contain indemnification provisions and procedures substantially similar to those set forth in Section 4(i) hereof (or such other procedures acceptable to the Holders of a majority of the aggregate principal amount of the Securities registered under the applicable Shelf Registration Statement and the managing underwriters, if any) with respect to all parties to be indemnified pursuant to Section 4(i) hereof.
(xii) In the case of any Shelf Registration, the Corporation shall (A) make reasonably available for inspection by the Holders of Securities, any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any attorney, accountant or other agent retained by the Holders of Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Corporation and (B) cause the Corporation's officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of Securities or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case as shall be reasonably necessary, in the judgment of the Holder or any such underwriter, attorney, accountant or agent referred to in this paragraph, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the Investors and Holders of Securities by one counsel designated by and on behalf of such other parties; and provided, further, that as to any information that is designated in writing by the Corporation, in good faith, as confidential at the time of delivery, such information shall be kept confidential by the Holders of Securities or by any such underwriter, attorney, accountant or other agent.
(xiii) In the case of any Shelf Registration, (A) the Corporation, if reasonably requested by Holders of a majority of the Securities covered by such Shelf Registration, which request shall not be more frequent than once per fiscal quarter, shall cause its counsel to deliver an opinion and updates thereof relating to the Securities in customary form addressed to such Holders of Securities and dated, in the case of the initial opinion, the effective date of such Shelf Registration Statement, provided such opinion is requested prior to the effective date (it being agreed that the matters to be covered by such opinion shall include such matters as are customarily included in opinions requested in underwritten offerings); andand (B) the Corporation, if requested by any majority of Holders of Securities covered by such Shelf Registration, shall cause its officers to execute and deliver all customary documents and certificates and updates thereof reasonably requested.
(iiixiv) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the Rules of Fair Practice and the By-Laws of the National Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Corporation shall use its reasonable best efforts to cause assist such broker-dealer in complying with the resale prospectus requirements of such Rules and By-Laws, including, without limitation, by (A) if such Rules or By-Laws shall so require, engaging a "qualified independent underwriter" (as defined in Section 2720 thereof) to participate in the preparation of the Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Shelf Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (B) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 4(i) hereof, and (C) providing such information to such broker-dealer as may be supplemented required in order for such broker-dealer to comply with the requirements of the Rules of Fair Practice of the NASD.
(xv) The Corporation shall use its best efforts to take all other steps necessary to effect the registration of the Securities covered by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further provided, that if an offering of Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedcontemplated hereby.
Appears in 1 contract
Shelf Registration Procedures. The In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by this Section 3, the Company shall use its best efforts to have effect such registration to permit the Registration Statement declared effective by sale of such Registrable Securities in accordance with the SEC intended method or methods of disposition thereof, and pursuant thereto it will, as soon expeditiously as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shallpossible:
(i1) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments to the before filing a Shelf Registration Statement as may be necessary to keep the or Shelf Registration Statement continuously effective (subject to any suspension period(s)) pursuant to Rule 415 until the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered by the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (Prospectus or any successor amendments or supplements thereto) promulgated under , furnish to the 1933 Act or (B) the date on which Holder shall have sold all Holders of the Registrable Securities covered by such Shelf Registration Statement and the underwriter(s), if any, copies of all such documents proposed to be filed, which documents will be made available, on a timely basis, for review by such Holders and underwriters; and the Company will not file any Shelf Registration Statement or amendment thereto or any Shelf Prospectus or any supple-ment thereto to which the Required Holders of the Registrable Securities covered by such Shelf Registration Statement or the managing underwriter(s), if any, shall reasonably object;
(2) prepare and file with the “SEC, within the time period set forth in Section 3(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement (a) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by the selling Holders thereof and (b) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(a) prepare and file with the SEC such amendments to such Shelf Registration Statement as may be reasonably requested by any Holder of Registrable Securities or the managing underwriter(s), if any, or as may be required by the Securities Act, the Exchange Act or by the rules, regulations or instructions applicable to the registration form utilized by the Company or as may otherwise be necessary to keep such Shelf Registra-tion Statement effective for the applicable period; (b) cause the Shelf Prospectus to be amended or supplemented as may be reasonably requested by any Holder of Registrable Securities or the managing underwriter(s), if any, or as may be required by the Securities Act, the Exchange Act or by the rules, regulations or instructions applicable to the registration form utilized by the Company or as may otherwise be necessary to keep such Shelf Registra-tion Statement effective for the applicable period; (c) cause the Shelf Prospectus as so amended or supplemented to be filed pursuant to Rule 424 (or any successor rule) under the Securities Act; (d) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (e) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof;
(4) promptly notify the selling Holders of Registrable Securities and the managing underwriter(s), if any, and if requested by any such Person, confirm such advice in writing:
(a) of the filing of the Shelf Prospectus or any supplement to the Shelf Prospectus and of the effectiveness of the Shelf Registration Statement and/or any post-effective amendment,
(b) of any request by the SEC for amendments or supplements to the Shelf Registration Statement or the Shelf Prospectus or for additional information,
(c) of the issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose,
(d) of the Company's becoming aware at any time that the representations and warranties of the Company contemplated by paragraph (xv)(a) below have ceased to be true and correct,
(e) 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 threat of any proceeding for such purpose, and
(f) of the existence of any fact which, to the knowledge of the Company, results in the Shelf Registration Statement, the Shelf Prospectus or any document incorporated therein by reference containing an untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(5) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any qualification referred to in paragraph (iii)(e) at the earliest possible moment;
(6) if reasonably requested by the managing underwriter(s) or the Required Period”Holders of Registrable Securities being sold in connection with an underwritten offering, immediately incorporate in a supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement such information as the managing underwriter(s) or the Required Holders 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 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 supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement as soon as notified of the matters to be incorporated in such supplement to the Shelf Prospectus or post-effective amendment to the Shelf Registration Statement;
(7) at the request of any selling Holder of Registrable Securities, furnish to such selling Holder of Registrable Securities and each managing underwriter, if any, without charge, at least one signed copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(8) deliver to each Holder of Registrable Securities and the managing underwriter(s), if any, without charge, as many copies of the Shelf Registration Statement, each Shelf Prospectus and any amendment or supplement thereto (in each case including all exhibits), as such Persons may reasonably request, together with all documents incorporated by reference in such Shelf Registration Statement or Shelf Prospectus, and such other documents as such selling Holder may reasonably request in order to facilitate the disposition of its Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by each such Holder of Registrable Securities and the underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(9) prior to the time the Shelf Registration Statement is declared effective by the SEC, register or qualify the Registrable Securities or reasonably cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any selling Holder or managing underwriter(s), if any, reasonably request(s), keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective, and do any and all other acts or things necessary to enable the disposition in such jurisdic-tions of the Registrable Securities covered by the Shelf Registration Statement;
(10) cooperate with the selling Holders of Registrable Securities and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any legends restricting the transfer thereof; and enable such Registrable Securities to be in such denominations and registered in such names as the selling Holders or the managing underwriters, if any, may request at least two Business Days prior to any sale of Registrable Securities;
(11) use its best efforts to cause the Registrable Securities covered by the Shelf Registration Statement to be registered with or approved by such United States, state and local governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(12) if any fact contemplated by paragraph (iv)(b) or (iv)(f) above shall exist, promptly notify each Holder on whose behalf Registrable Securities have been registered and promptly prepare and furnish to such Holders a supplement or post-effective amendment to the Shelf Registration Statement or the related Shelf Prospectus or any document incorporated therein by reference and promptly file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, neither the Shelf Registration Statement nor the Shelf Prospectus will contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(13) if requested by the Required Holders of the Registrable Securities or by the managing underwriter(s), if any, cause all Registrable Securities covered by the Shelf Registration Statement to be (a) listed on each securities exchange on which securities of the same class are then listed or (b) admitted for trading in any inter-dealer quotation system on which securities of the same class are then traded;
(14) not later than the effective date of the Shelf Registration Statement, provide a CUSIP number for all Registrable Securities covered by the Shelf Registration Statement and provide the applicable transfer agent with printed certificates for such Registrable Securities which are in a form eligible for deposit with Depository Trust Company;
(15) enter into agreements (including underwriting agreements) and take all other reasonable actions in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, except as otherwise provided, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration:
(a) make such representations and warranties to the Holders selling such Registrable Securities and, in connection with any underwritten offering, to the underwriters, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings;
(b) obtain opinions of counsel to the Company and updates thereof addressed to each selling Holder and the underwriters, if any, covering the matters customarily covered in opinions requested in similar underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters, which counsel and opinions shall be reasonably satisfactory (in form, scope and substance) to the managing underwriters, if any, and the Required Holders of such Registrable Securities;
(c) in connection with any underwritten offering, to obtain so-called "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling Holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters to underwriters in connection with similar underwritten offerings;
(d) if an underwriting agreement is entered into, cause the same to set forth in full the indemnification and contribution provisions and procedures of Section 6 (or such other substantially similar pro-visions and procedures as the underwriters shall reasonably request) with respect to all parties to be indemnified pursuant to said Section 6; and
(e) deliver such documents and certificates as may reasonably be requested by the Required Holders of the Registrable Securities being sold, or the managing underwriter(s), if any, to evidence compliance with this paragraph (xiv) and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company; the foregoing to be done upon each closing under any underwriting or similar agreement as and to the extent required thereunder and from time to time as may reasonably be requested by any selling Holder of Registrable Securities in connection with the disposition of Registrable Securities pursuant to such Shelf Registration Statement, all in a manner consistent with customary industry practice;
(16) upon execution and delivery of such confidentiality agreements as the Company may reasonably request, make available to the Holders of the Registrable Securities being sold, any underwriter participating in any disposition pursuant to such Shelf Registration Statement, and any attorney or accountant retained by such Holders or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney or accountant in connection with the registration, at such time or times as the Person requesting such information shall reasonably determine;
(17) otherwise use its best efforts to comply with the Securities Act, the Exchange Act, all applicable rules and regulations of the SEC and all applicable state blue sky and other securities laws, rules and regulations, and make generally available to its security holders, as soon as practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act;
(18) cooperate and 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); and
(iii19) use its reasonable best efforts prior to cause the resale prospectus to be supplemented filing of any document which is being prepared for incorporation by any required prospectus supplement; provided, that a registration pursuant to a Shelf reference into the Registration Statement shall not be deemed or the Prospectus, upon receipt of such confidentiality agreements as the Company may reasonably request, provide copies of such document to have been effected unless it has been declared effective by counsel to the SEC and has remained effective for the Required Period; further provided, that if an offering selling Holders of Registrable Securities pursuant Securities, and to a Shelf Registration Statement is terminated by any stop orderthe managing underwriter(s), injunctionif any, or other order and make the Company's representatives available for discussion of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effectedsuch document.
Appears in 1 contract
Samples: Registration Rights Agreement (Creative Host Services Inc)
Shelf Registration Procedures. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (ia) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of In connection with the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherStatement, the Company shall:
(i) use its best efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (as indicated in the information furnished to the Company pursuant to Section 3(b) hereof), and pursuant thereto the Company will prepare and file with the SEC Commission a Shelf Registration Statement relating to the registration on any appropriate form under the Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution thereof (including, without limitation, one or more underwritten offerings) within the final prospectus time periods and otherwise in accordance with the provisions hereof. The Company shall not be permitted to be used include in connection with sales pursuant to such the Shelf Registration Statement by 9:30 a.m. New York time on any securities other than the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restriction;Transfer Restricted Securities.
(ii) use its reasonable best efforts to contact all Holders of Transfer Restricted Securities and notify each Holder of its right to include its Transfer Restricted Securities in such Shelf Registration Statement.
(iii) use its best efforts to keep such Shelf Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 of this Agreement. Upon the occurrence of any event that would cause any such Shelf Registration Statement or the Prospectus contained therein (1) to contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading or (2) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Shelf Registration Statement curing such defect, and, if Commission review is required, use its best efforts to cause such amendment to be declared effective as soon as practicable.
(iv) prepare and file with the SEC Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective (subject to any suspension period(s)) pursuant to Rule 415 until the earlier of (A) the date as of which Holder may sell all of the Registrable Securities covered by the Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (effective for the “Required Period”); and
(iii) use its reasonable best efforts to applicable period set forth in Section 3 hereof, cause the resale prospectus Prospectus to be supplemented by any required prospectus Prospectus supplement; provided, that a registration and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply with the provisions of the Act;
(v) advise the Holders and underwriters, if any, promptly and, if requested by such Persons, confirm such advice in writing, (A) when the Prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to any Shelf Registration Statement shall not be deemed to have been effected unless it or any post-effective amendment thereto, when the same has been declared effective become effective, (B) of any request by the SEC and has remained effective Commission for the Required Period; further provided, that if an offering of Registrable Securities pursuant amendments to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveor amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the Shelf Registration Statement will be deemed not to have been effected.issuance by the Commission of any stop order suspending
Appears in 1 contract
Samples: Warrant Registration Rights Agreement (R&b Falcon Corp)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(a) prepare and file with the SEC, within the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with the intended method or methods of distribution by the Holder covered thereby and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(b) subject to the last three sentences of this Section 3(b) and Section 3(g) hereof, (i) prepare and file with the SEC such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with Rule 424 the intended method or methods of distribution by the Holder covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(g) with respect to the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holder to the effect that the Holder may not make offers or sales under the 1933 Act Shelf Registration Statement for a period (a "Suspension Period") not to exceed sixty (60) days from the final prospectus date of such ------------------ notice; provided however that such Suspension Period shall be terminated by ---------------- the Company as soon as reasonably practicable before the end of such Suspension Period (Holder acknowledges that this proviso shall not require the Company to make any public disclosure at any time the Company deems such disclosure, in its discretion, to not be used in connection with advisable); provided further, ---------------- that the Holder shall not be precluded from effecting sales pursuant to such this clause (x) for more than one hundred twenty (120) days during any 360-day period, and (y) unless and until the Company has received a written notice (a "Shelf Registration Notice") from the Holder that it intends to make offers or sales under the Shelf Registration Statement by 9:30 a.m. New York time on the Business Day following the date as specified in such Shelf Registration Notice; provided, however, that the Company shall ----------------- have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holder has delivered a Shelf Registration Notice to the Company, the Holder shall promptly provide and shall cause any underwriter participating in any disposition pursuant to the Shelf Registration Statement to promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. The Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as the Holder no longer intends to make offers or sales under the Shelf Registration Statement;
(c) after the Holder has been delivered a Shelf Registration Notice to the Company, furnish to the Holder, without charge, as many copies of the Shelf Registration Statement, the Shelf Prospectus and any amendments or supplements thereto, (not including any documents incorporated therein by reference or exhibits thereto unless specifically requested), as the Holder may reasonably request, in order to facilitate the public sale or other disposition of the Shelf Registrable Securities;
(d) use its reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC intended under applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as the Holder shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to permit each Holder to sell, at such Holder’s election, all be kept effective by the terms of this Agreement or part during the aggregate of the periods in which offers or sales are being made by the Holder after it has delivered one or more Shelf Registration Notices to the Company, whichever is shorter; provided, -------- however, that in connection therewith, the Company shall not be required to -------
(i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction where it is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holder, (i) when the Company requests effectiveness by the SEC of the Shelf Registration Statement and any post-effective amendments thereto, (ii) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (iii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iv) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, and (v) if the Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities held by for offer or sale in any jurisdiction or the initiation of any proceeding for such Holder without restrictionpurpose;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Shelf Registrable Securities for sale in any jurisdiction;
(g) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 3(b) hereof or upon the happening of any event as a result of which the Shelf Prospectus contains an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(h) make available at all reasonable times when the Holder intends to sale any or all of the Shelf Registrable Securities pursuant to the Shelf Registration Statement for inspection by the Holder, and any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any counsel or accountants retained by the Holder or any such underwriter all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by the Holder, any such underwriter, counsel or accountants in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which -------- ------- the Company determines in good faith to be confidential and notifies the Holder, any such underwriter, counsel or accountants in writing that such records, documents or information are confidential shall not be disclosed by the Holder, any such underwriter, counsel or accountants unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(i) prior to the initial filing of the Shelf Registration Statement and after each delivery of a Shelf Registration Notice to the Company by the Holder, as applicable, furnish copies of the Shelf Registration Statement or any amendment thereto, or the Shelf Prospectus or any amendment or supplement thereto (not including any documents incorporated by reference therein unless specifically requested) to the Holder and any underwriter sufficiently in advance of its use and/or filing with the SEC to allow the Holder and any underwriter an opportunity to comment thereon, but in no event less than four (4) business days prior to such use or filing, and not file any such Shelf Registration Statement, or any amendment thereto, or the Shelf Prospectus or any amendment or supplement thereto as to which the Holder or such underwriter may reasonably object within four (4) business days after the receipt thereof;
(j) if requested by the Holder, or any underwriter, incorporate in the Shelf Registration Statement or Shelf Prospectus, pursuant to a supplement or post effective amendment if necessary, after the delivery of a Shelf Registration Notice, such information as the Holder and any underwriter may reasonably request to have included therein, including, without limitation, information relating to the "plan of distribution" of the Shelf Registrable Securities, information with respect to the principal amount or number of shares of Shelf Registrable Securities being sold, the purchase price being paid therefor and any other terms of the offering of the Shelf Registrable Securities to be sold in such offering and make all required filings of any such Shelf Prospectus supplement or post-effective amendment as soon as reasonably practicable after the Company is notified of the matters to be incorporated in such Shelf Prospectus supplement or post effective amendment;
(k) in connection with an underwritten offering, (i) use its reasonable efforts to furnish to the Holder, addressed to it, an opinion of counsel for the Company, dated the date of the closing under the underwriting agreement (in such form as is customarily delivered to underwriters by issuer's counsel in underwritten public offerings of securities), and (ii) use its reasonable best efforts to prepare furnish to Holder, addressed to it, a comfort letter, dated the date of the underwriting agreement, signed by the Company's independent certified public accountants, who have certified the Company's financial statements included in such offering (covering substantially the same matters with respect to the offering as are customarily covered in accountants' letters delivered to underwriters in underwritten public offerings of securities);
(l) use its reasonable efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed; and
(m) otherwise use its reasonable efforts to comply with all applicable rules and file with regulations of the SEC as related to the Company's obligations hereunder, and use its reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require the Holder to furnish to the Company in writing such amendments information regarding the proposed distribution by the Holder as the Company may from time to time reasonably request in writing. In connection with and post-effective amendments as a condition to the Company's obligations with respect to the Shelf Registration Statement as may be necessary pursuant to keep Section 2 hereof and this Section 3, the Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement continuously effective (subject to any suspension period(s)) until it has provided a Shelf Registration Notice pursuant to Rule 415 until the earlier of (ASection 3(b) the date as of which Holder may sell all and has received copies of the Registrable Securities covered Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement without restriction and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(b) or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) receipt of a notice from the Company of the happening of an event as a result of which (or any successor thereto) promulgated under the 1933 Act or (Ba) the date on which Holder shall have sold all of the Registrable Securities covered by such Shelf Registration Statement contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein not misleading or (b) the “Required Period”)Shelf Prospectus contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the Holder shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until the Holder receives copies of a supplemented or amended Shelf Prospectus contemplated by Section 3(g) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; and
(iii) use its reasonable best efforts to cause all offers and sales by the resale prospectus to be supplemented by any required prospectus supplement; provided, that a registration pursuant to a Holder under the Shelf Registration Statement shall be completed within twenty (20) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such twenty (20) day period, the Holder will not be deemed to have been effected unless offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has been declared effective again complied with the provisions of clause (i) above (each a "Selling Period"); (iv) the Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC and has remained effective for the Required Period; further provided, that if an offering as applicable to them in connection with sales of Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; (v) the Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement Statement; and (vi) the Holder and any of its beneficial owners, officers, directors or affiliates, if any, will be deemed not enter into such written agreements as the Company shall reasonably request to have been effectedensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights Agreement (Concurrent Computer Corp/De)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 3 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holder covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holder covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holder to the effect that the Holder may not make offers or sales under the Shelf Registration Statement for a period not to exceed ninety (90) days from the date of such notice; provided, however, that the Company may deliver only two such notices ----------------- within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holder that it intends to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; provided, however, that the Company ----------------- shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holder has delivered a Shelf Registration Notice to the Company, the Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. The Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as the Holder no longer intends to make offers or sales under the Shelf Registration Statement;
(c) after the Holder has delivered a Shelf Registration Notice to the Company, furnish the Holder covered thereby, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holder of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holder shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holder after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, -------- ------- that in compliance connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holder promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the “Required Period”Holder has delivered a Shelf Registration Notice to the Company, furnish to the Holder, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as the Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holder has provided a Shelf Registration Notice to the Company, make available for inspection by the Holder and any counsel, accountants or other representatives retained by the Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by the Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which -------- ------- the Company determines in good faith to be confidential and notifies the Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by the Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to the Holder after the Holder has provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its reasonable best efforts to cause make available to its security holder, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require the Holder to be supplemented furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that the Holder as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3 hereof and this Section 4, the Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 4(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 4(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 4(e); (ii) upon receipt of any notice from the Company contemplated by Section 4(b) or Section 4(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 4(e)), the Holder shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until the Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by the Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, the Holder will not be deemed to have been effected unless offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has been declared effective again complied with the provisions of clause (i) above; (iv) the Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC and has remained effective for the Required Period; further provided, that if an offering as applicable to them in connection with sales of Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; (v) the Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement Statement; and (vi) the Holder and any of its beneficial owners, officers, directors or affiliates, if any, will be deemed not enter into such written agreements as the Company shall reasonably request to have been effectedensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Weeks Corp)
Shelf Registration Procedures. The In connection with the obligations of the Company shall use its best efforts with respect to have the each Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 3 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in Section 3 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shelf Registrable Securities in accordance with Rule 424 under the 1933 Act intended method or methods of distribution by the final prospectus Holder covered thereby and (ii) shall comply as to be used form in connection all material respects with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following requirements of the date that the Registration Statement has been declared effective applicable form and include all financial statements required by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part of the Registrable Securities held by such Holder without restrictionbe filed therewith;
(iib) use its reasonable best efforts subject to the last three sentences of this Section 4(b) and Section 4(i) hereof, (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Holder covered thereby. Notwithstanding anything to the contrary contained herein, the Company shall not be required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 4(b), Section 4(d) or Section 4(i) with respect to Rule 415 the Shelf Registrable Securities (x) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to the Holder to the effect that the Holder may not make offers or sales under the Shelf Registration Statement for a period not to exceed ninety (90) days from the date of such notice; provided, however, that the Company may deliver only two such notices -------- ------- within any twelve-month period, and (y) unless and until the earlier of Company has received a written notice (Aa "Shelf Registration Notice") from the date Holder that it intends to make offers or sales under the Shelf Registration Statement as of which Holder may sell all specified in such Shelf Registration Notice; provided, -------- however, that the Company shall have ten (10) business days to prepare and ------- file any such amendment or supplement after receipt of the Shelf Registration Notice. Once the Holder have delivered a Shelf Registration Notice to the Company, Holder thereby shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as Holder no longer intend to make offers or sales under the Shelf Registration Statement;
(c) after the Holder has delivered a Shelf Registration Notice to the Company, furnish Holder covered thereby, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by the Holder of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its reasonable and diligent efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as the requirement Holder shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by the Holder after they have delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in compliance -------- ------- connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction where is not otherwise subject to taxation, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify the Holder promptly and confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on which Holder shall have sold all Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the Registrable Securities covered by such circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) after the “Required Period”Holder has delivered a Shelf Registration Notice to the Company, furnish to Holder covered thereby, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with selling Holder to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such numbers of shares as Holder may reasonably request at least two business days prior to any sale of Shelf Registrable Securities;
(i) subject to the last three sentences of Section 4(b) hereof, upon the occurrence of any event contemplated by clause (x) of Section 4(b) or clause (v) of Section 4(e) hereof, use its reasonable and diligent efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) after the Holder has provided a Shelf Registration Notice to the Company, make available for inspection by Holder covered thereby and any counsel, accountants or other representatives retained by Holder all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Holder, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such -------- ------- records, documents or information which the Company determines in good faith to be confidential and notifies Holder, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by such Holder, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or governmental agency, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Holder covered thereby after the Holder has provided a Shelf Registration Notice to the Company;
(l) use its reasonable and diligent efforts to cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Shelf Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its reasonable best efforts to cause make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require Holder to be supplemented furnish to the Company in writing such information regarding the proposed distribution by any required prospectus supplement; provided, that Holder as the Company may from time to time reasonably request in writing. In connection with and as a registration condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 3 hereof and this Section 4, Holder covenants and agrees that (i) it will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 4(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 4(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 4(e); (ii) upon receipt of any notice from the Company contemplated by Section 4(b) or Section 4(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 4(e)), such Holder shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until Holder receives copies of the supplemented or amended Shelf Prospectus contemplated by Section 4(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, Holder will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in Holder's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) all offers and sales by Holder under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, Holder will not be deemed to have been effected unless offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it has been declared effective again complied with the provisions of clause (i) above; (iv) Holder and any of its beneficial owners, officers, directors or affiliates, if any, will comply with the provisions of Regulation M promulgated by the SEC and has remained effective for the Required Period; further provided, that if an offering as applicable to them in connection with sales of Shelf Registrable Securities pursuant to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectiveStatement; (v) Holder and any of its beneficial owners, 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 Shelf Registrable Securities pursuant to the Shelf Registration Statement Statement; and (vi) Holder and any of its beneficial owners, officers, directors or affiliates, if any, will be deemed not enter into such written agreements as the Company shall reasonably request to have been effectedensure compliance with clause (iv) and (v) above.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (Weeks Corp)
Shelf Registration Procedures. The Company (a) During the Required Period, any Holder shall use its best efforts be entitled to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). Further, the Company shall:
(i) file with the SEC in accordance with Rule 424 under the 1933 Act the final prospectus to be used in connection with sales pursuant to such Registration Statement by 9:30 a.m. New York time on the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, sell all or any part of the Registrable Securities held by registered on behalf of such Holder without restriction;
(ii) use its reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments pursuant to the Shelf Registration Statement Statements ("Holder Shelf Offering"); provided, however, that with respect to any Permitted Assignee that becomes a Holder pursuant to Section 11.2, such Holder shall deliver a Notice and Questionnaire to the applicable Company at least 10 Business Days prior to any intended distribution of Registrable Securities under a Shelf Registration Statement. The applicable Company shall (i) as may be necessary promptly as is practicable after the date a Notice and Questionnaire is received by such Company, but in any event within 10 Business Days after such date, if required by applicable law, file with the Commission a post-effective amendment to keep the applicable Shelf Registration Statement continuously effective (subject or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any suspension period(s)) pursuant document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling securityholder in such Shelf Registration Statement and the related Prospectus in such a manner as to Rule 415 until the earlier of (A) the date as of which permit such Holder may sell all to deliver such Prospectus to purchasers of the Registrable Securities covered by the in accordance with applicable law and, if a Company shall file a post-effective amendment to a Shelf Registration Statement without restriction or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the 1933 Act or (B) the date on which Holder shall have sold all of the Registrable Securities covered by such Shelf Registration Statement (the “Required Period”); and
(iii) Statement, use its reasonable best efforts to cause the resale prospectus such post-effective amendment to be supplemented by declared effective under the Securities Act as promptly as is practicable and (ii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any required prospectus supplementpost-effective amendment filed pursuant to this Article 4; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective by the SEC and has remained effective for the Required Period; further providedhowever, that if an offering such Notice and Questionnaire is delivered during a Suspension Period, the applicable Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i) and (ii) above upon expiration of the Suspension Period as though such Holder's Notice and Questionnaire had been delivered on the expiration date of such Suspension Period.
(b) Any Holder may, by written notice to Pioneer, request that the Companies take any reasonable steps necessary to assist and cooperate with such Holder to facilitate a Holder Shelf Offering, subject to the provisions hereof. Such request will specify the number of shares of Registrable Securities pursuant proposed to a Shelf Registration Statement is terminated by any stop order, injunction, or other order be sold and will also specify the intended method of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effective, the Shelf Registration Statement will be deemed not to have been effecteddisposition thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Pioneer Companies Inc)
Shelf Registration Procedures. The 3.1 In connection with the obligations of the Company shall use its best efforts with respect to have the Shelf Registration Statement declared effective contemplated by the SEC as soon as practicable, but in no event later than the date which is: (i) if the Registration Statement is not subject to a full review by the SEC, sixty (60) calendar days after the date of the Shelf Request, or (ii) if the Registration Statement is subject to a full review by the SEC, ninety (90) calendar days after the date of the Shelf Request (the “Shelf Filing Deadline”). FurtherSection 2 hereof, the Company shall:
(ia) prepare and file with the SEC SEC, within the time period set forth in accordance with Rule 424 under Section 2 hereof, the 1933 Act the final prospectus to be used in connection with sales pursuant to such Shelf Registration Statement, which Shelf Registration Statement by 9:30 a.m. New York time on (i) shall be available for the Business Day following the date that the Registration Statement has been declared effective by the SEC intended to permit each Holder to sell, at such Holder’s election, all or part sale of the Registrable Securities held in accordance with the intended method or methods of distribution by such Holder without restrictionWorldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(iib) use its reasonable best efforts subject to Section 3(i) hereof; (i) prepare and file with the SEC such amendments and post-effective amendments to the such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement continuously effective or any amendment thereto; and (subject iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any suspension period(sof the actions described in clauses (i), (ii) pursuant or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to Rule 415 until the earlier of Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of which Holder may sell all the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement;
(c) furnish Worldspan after it has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement without restriction is declared effective by the SEC under all applicable state securities or limitation pursuant to Rule 144 blue sky laws of such jurisdictions in the United States and without its territories and possessions as Worldspan shall reasonably request in writing, keep each such registration or qualification effective during the requirement period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in compliance connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan promptly and, if requested by Worldspan, confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with Rule 144(c)(1the SEC, (iii) (of the issuance by the SEC or any successor theretostate securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) promulgated under if the 1933 Act Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the date on Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which Holder shall have they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) furnish to Worldspan after delivery of a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold all and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares as Worldspan may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;
(i) upon the occurrence of any event contemplated by clause (v) of Section 3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities covered Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the “Required Period”)Company;
(l) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(iiin) use its commercially reasonable best efforts to cause make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the resale prospectus to provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be supplemented by any required prospectus supplement; provided, that a registration pursuant to a Shelf Registration Statement shall not be deemed to have been effected unless it has been declared effective adopted by the SEC SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and has remained effective for as a condition to the Required Period; further provided, that if an offering of Registrable Securities pursuant Company's obligations with respect to a Shelf Registration Statement is terminated by any stop order, injunction, or other order of the SEC or other governmental agency or court after the Shelf Registration Statement becomes effectivepursuant to Section 2 hereof and this Section 3, Worldspan covenants and agrees that (i) it will not offer or sell any Registrable Securities under the Shelf Registration Statement will be deemed not until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have been effected.become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), Worldspan shall not
Appears in 1 contract
