Shelf Registration Procedures. Each holder of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required to amend or supplement the Registration Statement with respect to such intended distribution of Registrable Securities by such holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and in any event within five (5) Business Days after such date, the Company shall either: (A) prepare and file with the SEC a post-effective amendment to the Shelf Registration or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or any other required document, so that such Registration Statement will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, 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 light of the circumstances under which they were made, not misleading; (B) provide each Initiating Holder a copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with its obligations in Section 2(d)(i)(A) and that the Registration Statement and related Prospectus may be used for the purpose of selling all or any of such Registrable Securities (or that, if the Company has filed a post-effective amendment to the Shelf Registration which has not yet been declared effective, the Company will notify each Initiating Holder to that effect, will use reasonable best efforts to secure the effectiveness of such post-effective amendment and will immediately so notify each Initiating Holder when the amendment has become effective); each Initiating Holder will sell all or any of such Registrable Securities pursuant to the Shelf Registration and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus may be used for such purpose; each Initiating Holder agrees that it will not sell any Registrable Securities pursuant to such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or (ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt of copies of the supplemented or amended Prospectus provided for in Section 2(d)(i)(A) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or similar material event or (y) a determination by the Company that, in the judgment of the Company, public disclosure of such material corporate development or similar material event would not be prejudicial to the Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Seitel Management, Inc.)
Shelf Registration Procedures. Each holder of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required to amend or supplement the Registration Statement with respect to such intended distribution of Registrable Securities by such holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and in any event within five (5) Business Days after such date, the Company shall either:
(A) prepare and file with the SEC a post-effective amendment to the Shelf Registration or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or any other required document, so that such Registration Statement will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, 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 light of the circumstances under which they were made, not misleading; (B) provide each Initiating Holder a copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with its obligations in Section 2(d)(i)(A) and that the Registration Statement and related Prospectus may be used for the purpose of selling all or any of such Registrable Securities (or that, if the Company has filed a post-effective amendment to the Shelf Registration which has not yet been declared effective, the Company will notify each Initiating Holder to that effect, will use reasonable best efforts to secure the effectiveness of such post-effective amendment and will immediately so notify each Initiating Holder when the amendment has become effective); each Initiating Holder will sell all or any of such Registrable Securities pursuant to the Shelf Registration and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus may be used for such purpose; each Initiating Holder agrees that it will not sell any Registrable Securities pursuant to such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s 's Selling Period will not commence until such Initiating Holder’s 's receipt of copies of the supplemented or amended Prospectus provided for in Section 2(d)(i)(A) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or similar material event or (y) a determination by the Company that, in the judgment of the Company, public disclosure of such material corporate development or similar material event would not be prejudicial to the Company.
Appears in 1 contract
Shelf Registration Procedures. Each holder In connection with the obligations of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required shelf registration statement pursuant to amend or supplement Section 5.1(a) hereof and, to the Registration Statement with respect to such intended distribution of Registrable Securities by such holder; providedextent applicable, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%Section 5.1(b) of the Registrable Securities. As promptly as is practicable after the date such notice is providedhereof, and in any event within five (5) Business Days after such datesubject to Section 5.2 hereof, the Company shall eithershall:
(Ai) prepare and file with the SEC Commission a shelf registration statement on the appropriate form under the Securities Act, (A) which form shall be selected by the Company and 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 (provided that the Company shall not be required to use any form other than Form S-1, S-2, S-3, SB-1 or SB-2 as applicable or any successor form and xxxxx xxx xx xxxxxxxx to file more than one shelf registration statement with the Commission) and (B) which shelf registration statement shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the Commission to be so included or incorporated by reference, further provided that subject to the registration statement and prospectus being in compliance with the requirements of the Securities Act and the Exchange Act (including all rules and regulations of the Commission thereunder), the Company has the sole discretion to determine the form, substance and presentation of any financial or other information included in any registration statement or prospectus, and whether such information should be included in such registration statement or prospectus; and (ii) use its best efforts to cause such shelf registration statement to become effective and remain effective in accordance with Section 5.1 hereof;
(b) prepare and file with the Commission 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; and cause each prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act;
(c) in the event that any federal law or regulation binding on the Company and adopted after the date hereof so requires (and would also so require if the Registrable Securities were being offered in a primary offering by the Company rather than by the holders), use its best efforts to cause such Registrable Securities to be registered with or approved by such other federal governmental agencies or authorities in the United States, if any, as may be required by virtue of the business and operations of the Company to enable the selling holders to consummate the disposition of such Registrable Securities; 10
(d) furnish to each holder of Registrable Securities and to each managing underwriter of an underwritten offering of Registrable Securities pursuant to Section 4(1) of the Securities Act, if any, without charge, as many copies of each prospectus, including each preliminary prospectus, and any amendment or supplement thereto as such holder or underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities;
(e) use its best efforts to register or qualify the Registrable Securities under all applicable state securities or "blue sky" laws of such jurisdictions as any holder of Registrable Securities of such class covered by the shelf registration statement shall, on 20 days prior written notice, reasonably request in writing. Such notice to be sent at any time prior to the applicable registration statement being declared effective by the Commission. The Company shall maintain such registration or qualification in effect during the applicable period provided in Section 5.1(a) hereof; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5(e); (ii) subject itself to taxation in any such jurisdiction; (iii) make any change to its Articles or Incorporation or Bylaws; or (iv) become subject to general service of process in any jurisdiction where it is not then so subject;
(f) notify each holder of Registrable Securities as promptly as practicable after becoming aware thereof and (if requested by any such holder) confirm such notice in writing (i) when the shelf registration statement has become effective and when any post-effective amendments and supplements thereto become effective; (ii) of any request by the Commission or any state securities authority for amendments and supplements to the shelf registration statement and any prospectus or for additional information relating to the Registrable Securities or the shelf registration or qualification thereof after the registration statement has become effective; (iii) 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; (iv) if the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the Registrable Securities cease to be true and correct in any material respect prior to the closing date specified in such agreement (provided such notice shall be given only to holders which are parties to the agreements pursuant to which such representations and warranties are made), or 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 (v) of the happening of any event during the period (other than any suspension period referred to in Section 5.2(a)) during which the shelf registration statement is required hereunder to be effective as a result of which the shelf registration statement or any prospectus would contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading; 11
(g) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the shelf registration statement or the qualification of the Registrable Securities for sale in any jurisdiction as promptly as practicable;
(h) furnish to each holder 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 in writing);
(i) cooperate with the holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to the shelf registration statement and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the selling holders may reasonably request (in each case, provided such certificates are requested in writing at least three business days prior to any delivery thereof);
(j) upon the occurrence of any event contemplated by Section 5.3(f)(v) hereof, use its best efforts as promptly as practicable to prepare and file with the Commission a supplement or post-effective amendment to the Shelf Registration shelf registration statement or a supplement to the related Prospectus prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required documentdocument so that, so that as thereafter delivered to the purchasers of the Registrable Securities, such Registration Statement 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 not misleading and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, 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 light of the circumstances under which they were made, not misleading; ;
(Bk) provide each Initiating Holder a copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with otherwise use its obligations in Section 2(d)(i)(A) and that the Registration Statement and related Prospectus may be used for the purpose of selling all or any of such Registrable Securities (or that, if the Company has filed a post-effective amendment to the Shelf Registration which has not yet been declared effective, the Company will notify each Initiating Holder to that effect, will use reasonable best efforts to secure comply with all applicable rules and regulations of the effectiveness Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the shelf registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act;
(l) use its best efforts to (i) cause all Registrable Securities to be listed or quoted on any securities exchange or quotation system on which the Company's outstanding Common Stock is then listed or quoted; and
(m) obtain a CUSIP number for all Registrable Securities not later than the effective date of the shelf registration statement. Each holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.3(f)(v) hereof, such post-effective amendment and holder will immediately so notify each Initiating Holder when the amendment has become effective); each Initiating Holder will sell all or any forthwith discontinue disposition of such Registrable Securities pursuant to the Shelf Registration and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus may be used for covering such purpose; each Initiating Holder agrees that it will not sell any 12 Registrable Securities pursuant to until such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) if, in the judgment holder's receipt of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt of copies of the supplemented or amended Prospectus provided for in prospectus contemplated by Section 2(d)(i)(A5.3(j) hereof, or until it is advised in writing by the Company that the Prospectus use of such prospectus may be usedresumed and, and has received if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference then in such Prospectus. The holder's possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice; provided, however, that the Company will shall use its reasonable best efforts to ensure that promptly prepare and provide to the use holders a supplemented or amended prospectus contemplated by such Section 5.3(j) hereof. In the event the Company shall give any such notice, the period during which such Registration Statement shall be maintained effective shall be extended by the number of days during the period from and including the date of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure giving of such pending material corporate development or similar material event or (ynotice pursuant to Section 5.3(f)(v) a determination hereof to including the date when each holder of Registrable Securities covered by such Registration Statement shall have received the Company that, in the judgment copies of the Company, public disclosure of such material corporate development supplemented or similar material event would not be prejudicial to the Companyamended prospectus contemplated by Section 5.3(j) hereof.
Appears in 1 contract
Samples: Class a Warrant Agreement (Soy Environmental Products Inc)
Shelf Registration Procedures. Each holder In connection with the obligations of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required to amend or supplement the Shelf Registration Statement with respect to such intended distribution of Registrable Securities contemplated by such holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and in any event within five (5) Business Days after such dateSection 3.1 hereof, the Company shall eithershall:
(Aa) prepare and file with the SEC a post-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 to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective amendment 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 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 (i), (ii) or (iii) in this Section 3.2(b), Section 3.2(d) or Section 3.2(i) with respect to the Shelf Registrable Securities (x) to the 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 of such notice; PROVIDED, HOWEVER, that the Company may 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 is declared effective by the Commission 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 a Holder has 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 3.2(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 related Shelf Prospectus or a supplement or amendment to any document incorporated therein has been filed with the Commission, (iii) of the issuance by reference the Commission or any other required document, so that such state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement will not contain 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 omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and so that, or (B) the Shelf Prospectus as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain then amended or supplemented contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(Bf) provide each Initiating 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 Holders after a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with its obligations in Section 2(d)(i)(A) and that the Shelf Registration Statement and related 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 may be used for the purpose of selling all or any document incorporated therein by reference or prepare, file and obtain effectiveness of such Registrable Securities (or that, if the Company has filed 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 not yet been declared effective, provided a Shelf Registration Notice to the Company will notify each Initiating Holder 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 effectsuch records, will 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
(l) use its reasonable best efforts to secure cause all Shelf Registrable Securities to be listed on the effectiveness 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 the Holders 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 3.1 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 such 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 amendment and will immediately so notify each Initiating Holder when the amendment has amendments thereto have become effectiveeffective as contemplated by Section 3.2(e); each Initiating Holder will (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 offer or sell all or any of such Shelf Registrable Securities pursuant to the Shelf Registration and related Prospectus only during Statement until the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus may be used for such purpose; each Initiating Holder agrees that it will not sell any Registrable Securities pursuant to such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt of Holders receive copies of the supplemented or amended Shelf Prospectus provided for in contemplated by Section 2(d)(i)(A3.2(i) hereofhereof and receive notice that any post-effective amendment has become effective, or until it is advised in writing and, if so directed by the Company that Company, the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company Holders will use its reasonable best efforts deliver to ensure that the use of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or similar material event or (y) a determination by the Company that, in (at the judgment expense of the Company) all copies in its possession, public disclosure 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 material corporate development notice; (iii) upon the expiration of 60 days after the first date on which offers or similar material event would sales can be made pursuant to clause (i) above, the Holders will not be prejudicial 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 comply with the provisions of Regulation M under the Exchange Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the CompanyShelf 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
Shelf Registration Procedures. Each holder underwriter, agent, selling broker, dealer manager or similar securities industry professional participating in any offering of Registrable Securities agrees that if it wishes the Shares is referred to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution as an "underwriter" or "agent" and any information agreement entered into with an underwriter or agent is referred to as an "underwriting or agency agreement". In connection with the obligations of the Issuer with respect to such holder and the intended distribution of Registrable Securities by such holder required to amend or supplement the Shelf Registration Statement contemplated by Section 5.1 hereof, the Issuer covenants with respect to such intended distribution of Registrable Securities by such holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice the Purchaser and each underwriter or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and agent participating in any event within five (5) Business Days after such date, the Company shall eitheroffering that it shall:
(Aa) prepare and file with the SEC a post-Commission, within the time period set forth in Section 5.1 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Shares in accordance with the intended method or methods of distribution by the Purchaser 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 5.3(b) and Section 5.3(i) hereof, (i) prepare and file with the Commission such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective amendment for the Registration 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 that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the Commission 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 Registration Period in accordance with the intended method or methods of distribution by the Purchaser. Notwithstanding anything to the contrary contained herein, the Issuer shall not be required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 5.3(b) or Section 5.3(i) with respect to the Shares to the extent that the Issuer 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 (a "Black-out Event") and it delivers written notice to the Purchaser to the effect that the Purchaser 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 Issuer may deliver only two such notices within the one year period from the date hereof and may deliver only three such notices within any twelve-month period thereafter;
(c) furnish to the Purchaser and any underwriter or agent, without charge (except as described in Section 5.2 hereof), as many copies of each Prospectus and any amendment or supplement thereto as the Purchaser and any underwriter or agent may request in order to facilitate the public sale or other disposition of the Shares; the Issuer consents to the use of the Prospectus and any amendment or supplement thereto by the Purchaser and any underwriter or agent in connection with the offering and sale of the Shares;
(d) use its reasonable best efforts to register or qualify the Shares by the time the Shelf Registration Statement is declared effective by the Commission under such applicable state securities or blue sky laws of the various states of the United States and its territories and possessions as shall be necessary or appropriate in connection with the offering or sale of the Shares and keep each such registration or qualification effective during the Registration Period; provided, however, that in connection therewith, the Issuer 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 5.3(d) or (ii) subject itself to taxation in any such jurisdiction;
(e) notify the Purchaser and any underwriter or agent promptly and, if requested, 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 related Prospectus or a supplement or amendment to has been filed with the Commission, (iii) of the receipt of any document incorporated therein comments from the Commission, (iv) of the issuance by reference the Commission or any other required document, so that such state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement will not contain or any part thereof or the initiation of any proceedings for that purpose, (v) if the Issuer receives any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (vi) 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 omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and so that, or (B) the Prospectus as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain then amended or supplemented contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(Bf) provide each Initiating Holder a make every reasonable effort to prevent the issuance of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof and, if any such order is issued, to obtain the lifting thereof as soon as legally practicable;
(g) furnish to the Purchaser and any underwriter or agent, without charge, at least one executed copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with its obligations in Section 2(d)(i)(A) and that the Shelf Registration Statement and related of all amendments thereto, whether filed before or after the Shelf Registration Statement becomes effective and copies of all exhibits and documents filed therewith (without documents incorporated therein by reference, unless requested);
(h) cooperate with the Purchaser to facilitate the timely preparation and delivery of certificates representing Shares to be sold and not bearing any Securities Act legend; and enable certificates for such Shares to be issued for such numbers of shares and registered in such names as the Purchaser may reasonably request at least two Business Days prior to any sale of Shares; it being understood that in determining what constitutes Purchaser's reasonable request hereunder, Purchaser understands that the Issuer acts as its own registrar and transfer agent and cannot issue a large volume of certificates within two Business Days;
(i) subject to the last three sentences of Section 5.3(b) hereof, upon the occurrence of a Black-out Event or an event contemplated by clause (vi) of Section 5.3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Prospectus may be used for the purpose of selling all or any document incorporated therein by reference or prepare, file and obtain effectiveness of such Registrable Securities (or that, if the Company has filed 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 Shares, such 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 Purchaser and any counsel, accountants or other representatives retained by the Purchaser and any underwriters or agents all financial and other records, pertinent corporate documents and properties of the Issuer and cause the officers, directors and employees of the Issuer to supply all such records, documents or information reasonably requested by the Purchaser, counsel, accountants, representatives, underwriters or agents in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Issuer determines in good faith to be confidential and notifies the Purchaser, counsel, accountants, representatives, underwriters or agents in writing that such records, documents or information are confidential shall not be disclosed by the Purchaser, its employees counsel, accountants, representatives, underwriters or agents 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 Purchaser and any underwriters or agents, if any, so that the Purchaser and any underwriter or agent, if any, has not yet been declared effective, a reasonable opportunity to comment thereon prior to its being used and/or filed with the Company will notify each Initiating Holder to that effect, will Commission;
(l) use reasonable its best efforts to secure cause the Shares to be listed on any securities exchange or interdealer quotation system on which similar securities issued by the Issuer are then listed;
(m) provide a CUSIP number for all Shares, 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 earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(o) make such representations and warranties to the Purchaser and the underwriters and agents, if any, in form, substance and scope as are customarily made by issuers to underwriters in underwritten public offerings;
(p) on the effective date of the Shelf Registration Statement and, in the case of an underwritten offering, on the date of delivery of the Shares sold pursuant thereto, the Issuer shall cause to be delivered to the Purchaser and the underwriters or agents, if any, opinions of counsel for the Issuer with respect to, among other things, the due incorporation and good standing of the Issuer; the due authorization, execution and delivery of this Agreement; the due authorization, execution, issuance and validity of the Shares; the absence of material legal or governmental proceedings involving the Issuer; the absence of a breach by the Issuer of, or a default under, material agreements binding the Issuer; the absence of governmental approvals required to be obtained in connection with the registration, offering and sale of the Shares; the compliance as to form of the Shelf Registration Statement and any documents incorporated by reference therein with the requirements of the Securities Act and the Exchange Act; the effectiveness of such the Shelf Registration Statement under the Securities Act; and a statement that, as of the date of the opinion and of the Shelf Registration Statement or most recent post-effective amendment and will immediately so notify each Initiating Holder when the amendment has become effective); each Initiating Holder will sell all or any of such Registrable Securities pursuant to the Shelf Registration and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day periodthereto, as the case may be, nothing has come to be calculated without regard the attention of such counsel which causes them to any Deferral Period), pursuant to Section 2(d)(i)(C), believe that either the Registration Statement and Prospectus may be used for such purpose; each Initiating Holder agrees that it will not sell any Registrable Securities pursuant to such Shelf Registration Statement or the Prospectus after included therein, as then amended or supplemented, or the documents incorporated by reference therein (in the case of such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) ifdocuments, in the judgment light of the Companycircumstances existing at the time that such documents were filed with the Commission under the Exchange Act), contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading (it is advisable being understood that such counsel need express no opinion as to suspend use the financial statements and other financial data included therein or omitted therefrom nor shall counsel need to make any special inquiry or investigation in preparation for furnishing the foregoing opinion except for inquiry of its own attorneys who are working on legal matters for the Issuer as of the Prospectus for a period date of time due to pending material corporate developments counsel's opinion, inquiry of Issuer's Chairman, President, Treasurer and Controller and any other inquiry or similar material events investigation that have not yet been publicly disclosed and as to which such counsel deems necessary or appropriate under the Company believes public disclosure will be prejudicial circumstances);
(q) Immediately prior to the Companyeffectiveness of the Shelf Registration Statement and, in the case of an underwritten offering, at the time of delivery of any Shares sold pursuant thereto, the Company Issuer shall cause to be delivered to the Purchaser and the underwriters or agents, if any, letters from the Issuer's independent public accountants stating that such accountants are independent public accountants with respect to the Issuer within the meaning of the Securities Act and the applicable published rules and regulations of the Commission thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent public accountants delivered in connection with primary underwritten public offerings;
(r) The Issuer shall deliver a certificate in writing, signed such documents and certificates as may be requested by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, Purchaser or the Special Counsel and the Managing Underwritersunderwriters or agents, if any, to evidence compliance with Section 5.3(o) and with any customary conditions contained in the effect underwriting or agency agreement, if any; and
(s) The Issuer will enter into such customary agreements, including a customary underwriting or agency agreement with the underwriters or agents, if any, and take all such other actions in connection with the offering in order to expedite or facilitate the disposition of the foregoing andShares; provided, upon receipt however, that any such agreement shall provide for payment of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt expenses consistent with Section 5.2 of copies of the supplemented or amended Prospectus provided for in Section 2(d)(i)(A) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or similar material event or (y) a determination by the Company that, in the judgment of the Company, public disclosure of such material corporate development or similar material event would not be prejudicial to the Companythis Agreement.
Appears in 1 contract
Samples: Purchase and Registration Rights Agreement (Grand Metropolitan PLC Et Al)
Shelf Registration Procedures. Each holder In connection with the obligations of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required shelf registration statement pursuant to amend or supplement Section 5.1(a) hereof and, to the Registration Statement with respect to such intended distribution of Registrable Securities by such holder; providedextent applicable, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%Section 5.1(b) of the Registrable Securities. As promptly as is practicable after the date such notice is providedhereof, and in any event within five (5) Business Days after such datesubject to Section 5.2 hereof, the Company shall either:shall: 9
(Ai) prepare and file with the SEC Commission a shelf registration statement on the appropriate form under the Securities Act, (A) which form shall be selected by the Company and 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 (provided that the Company shall not be required to use any form other than Form S-1, S-2, S-3, SB-1 or SB-2 as applicable or any successor form and shall not be required to file more than one shelf registration statement with the Commission) and (B) which shelf registration statement shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the Commission to be so included or incorporated by reference, further provided that subject to the registration statement and prospectus being in compliance with the requirements of the Securities Act and the Exchange Act (including all rules and regulations of the Commission thereunder), the Company has the sole discretion to determine the form, substance and presentation of any financial or other information included in any registration statement or prospectus, and whether such information should be included in such registration statement or prospectus; and (ii) use its best efforts to cause such shelf registration statement to become effective and remain effective in accordance with Section 5.1 hereof;
(b) prepare and file with the Commission 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; and cause each prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act;
(c) in the event that any federal law or regulation binding on the Company and adopted after the date hereof so requires (and would also so require if the Registrable Securities were being offered in a primary offering by the Company rather than by the holders), use its best efforts to cause such Registrable Securities to be registered with or approved by such other federal governmental agencies or authorities in the United States, if any, as may be required by virtue of the business and operations of the Company to enable the selling holders to consummate the disposition of such Registrable Securities;
(d) furnish to each holder of Registrable Securities and to each managing underwriter of an underwritten offering of Registrable Securities pursuant to Section 4(1) of the Securities Act, if any, without charge, as many copies of each prospectus, including each preliminary prospectus, and any amendment or supplement thereto as such holder or underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities;
(e) use its best efforts to register or qualify the Registrable Securities under all applicable state securities or "blue sky" laws of such jurisdictions as any holder of Registrable Securities of such class covered by the shelf registration statement shall, on 20 days prior written notice, reasonably request in writing. Such notice to be sent at any time prior to the applicable registration statement being declared effective by the Commission. The Company shall maintain 10 such registration or qualification in effect during the applicable period provided in Section 5.1(a) hereof; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5(e); (ii) subject itself to taxation in any such jurisdiction; (iii) make any change to its Articles or Incorporation or Bylaws; or (iv) become subject to general service of process in any jurisdiction where it is not then so subject;
(f) notify each holder of Registrable Securities as promptly as practicable after becoming aware thereof and (if requested by any such holder) confirm such notice in writing (i) when the shelf registration statement has become effective and when any post-effective amendments and supplements thereto become effective; (ii) of any request by the Commission or any state securities authority for amendments and supplements to the shelf registration statement and any prospectus or for additional information relating to the Registrable Securities or the shelf registration or qualification thereof after the registration statement has become effective; (iii) 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; (iv) if the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the Registrable Securities cease to be true and correct in any material respect prior to the closing date specified in such agreement (provided such notice shall be given only to holders which are parties to the agreements pursuant to which such representations and warranties are made), or 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 (v) of the happening of any event during the period (other than any suspension period referred to in Section 5.2(a)) during which the shelf registration statement is required hereunder to be effective as a result of which the shelf registration statement or any prospectus would contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading;
(g) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the shelf registration statement or the qualification of the Registrable Securities for sale in any jurisdiction as promptly as practicable;
(h) furnish to each holder 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 in writing);
(i) cooperate with the holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to the shelf registration statement and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the selling holders may 11 reasonably request (in each case, provided such certificates are requested in writing at least three business days prior to any delivery thereof);
(j) upon the occurrence of any event contemplated by Section 5.3(f)(v) hereof, use its best efforts as promptly as practicable to prepare and file with the Commission a supplement or post-effective amendment to the Shelf Registration shelf registration statement or a supplement to the related Prospectus prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required documentdocument so that, so that as thereafter delivered to the purchasers of the Registrable Securities, such Registration Statement 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 not misleading and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, 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 light of the circumstances under which they were made, not misleading; ;
(Bk) provide each Initiating Holder a copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with otherwise use its obligations in Section 2(d)(i)(A) and that the Registration Statement and related Prospectus may be used for the purpose of selling all or any of such Registrable Securities (or that, if the Company has filed a post-effective amendment to the Shelf Registration which has not yet been declared effective, the Company will notify each Initiating Holder to that effect, will use reasonable best efforts to secure comply with all applicable rules and regulations of the effectiveness Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the shelf registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act;
(l) use its best efforts to (i) cause all Registrable Securities to be listed or quoted on any securities exchange or quotation system on which the Company's outstanding Common Stock is then listed or quoted; and
(m) obtain a CUSIP number for all Registrable Securities not later than the effective date of the shelf registration statement. Each holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.3(f)(v) hereof, such post-effective amendment and holder will immediately so notify each Initiating Holder when the amendment has become effective); each Initiating Holder will sell all or any forthwith discontinue disposition of such Registrable Securities pursuant to the Shelf Registration and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus may be used for covering such purpose; each Initiating Holder agrees that it will not sell any Registrable Securities pursuant to until such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) if, in the judgment holder's receipt of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt of copies of the supplemented or amended Prospectus provided for in prospectus contemplated by Section 2(d)(i)(A5.3(j) hereof, or until it is advised in writing by the Company that the Prospectus use of such prospectus may be usedresumed and, and has received if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference then in such Prospectus. The holder's possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice; provided, however, that the Company will shall use its reasonable best efforts to ensure that promptly prepare and provide to the use holders a supplemented or amended prospectus contemplated by such Section 5.3(j) hereof. In the event the Company shall give any such notice, the period during which such Registration Statement shall be maintained effective shall be extended by the number of days during the period from and including the date of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure giving of such pending material corporate development or similar material event or (ynotice pursuant to Section 5.3(f)(v) a determination hereof to including the date when each holder of Registrable Securities covered by such Registration Statement shall have received the Company that, in the judgment copies of the Company, public disclosure of such material corporate development supplemented or similar material event would not be prejudicial to the Company.amended prospectus contemplated by Section 5.3(j) hereof. 12
Appears in 1 contract
Samples: Private Placement Memorandum (Soy Environmental Products Inc)
Shelf Registration Procedures. Each holder In connection with the obligations of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required to amend or supplement the Shelf Registration Statement with respect to such intended distribution of Registrable Securities contemplated by such holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and in any event within five (5) Business Days after such dateSection 3.1 hereof, the Company shall eithershall:
(Aa) prepare and file with the SEC a post-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 to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective amendment 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 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 (i), (ii) or (iii) in this Section 3.2(b), Section 3.2(d) or Section 3.2(i) with respect to the Shelf Registrable Securities (x) to the 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 of such notice; provided, however, that the Company may 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 is declared effective by the Commission 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 a Holder has 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 3.2(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 related Shelf Prospectus or a supplement or amendment to any document incorporated therein has been filed with the Commission, (iii) of the issuance by reference the Commission or any other required document, so that such state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement will not contain 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 omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and so that, or (B) the Shelf Prospectus as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain then amended or supplemented contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(Bf) provide each Initiating 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 Holders after a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with its obligations in Section 2(d)(i)(A) and that the Shelf Registration Statement and related 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 may be used for the purpose of selling all or any document incorporated therein by reference or prepare, file and obtain effectiveness of such Registrable Securities (or that, if the Company has filed 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 not yet been declared effective, provided a Shelf Registration Notice to the Company will notify each Initiating Holder 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 effectsuch records, will 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
(l) use its reasonable best efforts to secure cause all Shelf Registrable Securities to be listed on the effectiveness New York Stock Exchange at 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 the Holders 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 3.1 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 such 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 amendment and will immediately so notify each Initiating Holder when the amendment has amendments thereto have become effectiveeffective as contemplated by Section 3.2(e); each Initiating Holder will (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 offer or sell all or any of such Shelf Registrable Securities pursuant to the Shelf Registration and related Prospectus only during Statement until the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus may be used for such purpose; each Initiating Holder agrees that it will not sell any Registrable Securities pursuant to such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt of Holders receive copies of the supplemented or amended Shelf Prospectus provided for in contemplated by Section 2(d)(i)(A3.2(i) hereofhereof and receive notice that any post-effective amendment has become effective, or until it is advised in writing and, if so directed by the Company that Company, the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company Holders will use its reasonable best efforts deliver to ensure that the use of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or similar material event or (y) a determination by the Company that, in (at the judgment expense of the Company) all copies in its possession, public disclosure 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 material corporate development notice; (iii) upon the expiration of 60 days after the first date on which offers or similar material event would sales can be made pursuant to clause (i) above, the Holders will not be prejudicial 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 comply with the provisions of Regulation M under the Exchange Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the CompanyShelf 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. Each holder In connection with the obligations of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required to amend or supplement the Shelf Registration Statement with respect to such intended distribution of Registrable Securities contemplated by such holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and in any event within five (5) Business Days after such dateSection 3.1 hereof, the Company shall eithershall:
i. prepare and file with the 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;
ii. subject to the last six sentences of this Section 3.2(b) and Section 3.2(i) hereof, (Ai) prepare and file with the SEC a post-Commission such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective amendment 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 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 (i), (ii) or (iii) in this Section 3.2(b), Section 3.2(d) or Section 3.2(i) with respect to the Shelf Registrable Securities (x) to the 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 of such notice; PROVIDED, HOWEVER, that the Company may 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;
iii. 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;
iv. use its commercially reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement is declared effective by the Commission 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 a Holder has 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 3.2(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
v. 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 related Shelf Prospectus or a supplement or amendment to any document incorporated therein has been filed with the Commission, (iii) of the issuance by reference the Commission or any other required document, so that such state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement will not contain 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 omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and so that, or (B) the Shelf Prospectus as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain then amended or supplemented contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (B) provide each Initiating Holder a copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with its obligations in Section 2(d)(i)(A) and that the Registration Statement and related Prospectus may be used for the purpose of selling all or any of such Registrable Securities (or that, if the Company has filed a post-effective amendment to the Shelf Registration which has not yet been declared effective, the Company will notify each Initiating Holder to that effect, will use reasonable best efforts to secure the effectiveness of such post-effective amendment and will immediately so notify each Initiating Holder when the amendment has become effective); each Initiating Holder will sell all or any of such Registrable Securities pursuant to the Shelf Registration and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus may be used for such purpose; each Initiating Holder agrees that it will not sell any Registrable Securities pursuant to such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or;
(ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt of copies of the supplemented or amended Prospectus provided for in Section 2(d)(i)(A) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectusvi. The Company will use its reasonable best efforts to ensure that obtain the use withdrawal of any order suspending the effectiveness of the Prospectus may be resumed, and Shelf Registration Statement or any part thereof as promptly as possible;
vii. promptly furnish to the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or similar material event or (y) Holders after a determination by the Company that, in the judgment of Holder has delivered a Shelf Registration Notice to the Company, public disclosure without charge, at least one conformed copy of such material corporate development the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or similar material event would not be prejudicial to the Company.exhibits thereto, unless requested);
Appears in 1 contract
Samples: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Shelf Registration Procedures. Each holder In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by Section 3 hereof, the Company shall:
(a) prepare and file with the 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 agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with the intended method or methods of distribution by NWI Group 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 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six 4(b) and Section 4(i) hereof, (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required to amend or supplement the Registration Statement with respect to such intended distribution of Registrable Securities by such holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and in any event within five (5) Business Days after such date, the Company shall either:
(Ai) prepare and file with the SEC such amendments to 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 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 the intended method or methods of distribution by NWI Group. 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 4(b), Section 4(d) or Section 4(i) 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 active negotiations or planning for a postmerger or acquisition or disposition transaction and it delivers written notice to NWI Group to the effect that NWI Group 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 Company has received a written notice (a "Shelf Registration Notice") from NWI Group 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 the Shelf Registration Notice. Once NWI Group has delivered a Shelf Registration Notice to the Company, NWI Group 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 related Shelf Prospectus. NWI Group also shall notify the Company in writing upon completion of such offer or sale or at such time as NWI Group no longer intends to make offers or sales under the Shelf Registration Statement;
(c) furnish NWI Group 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 Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by NWI Group 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 efforts to register or qualify the Shelf 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 NWI Group 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 NWI Group after it has 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, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify NWI Group promptly and, if requested by NWI Group, confirm in writing, (i) when the Shelf Registration Statement and any post- effective amendments thereto have become effective, (ii) when any amendment or supplement or amendment to any document incorporated therein the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by reference the SEC or any other required document, so that such state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement will not contain 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 omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and so that, or (B) the Shelf Prospectus as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain then amended or supplemented contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(Bf) provide each Initiating Holder 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 NWI Group after it has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of any documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the Company has complied with its obligations in Section 2(d)(i)(A) and that the Shelf Registration Statement and related any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with NWI Group 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 NWI Group 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 efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus may be used for the purpose of selling all or any document incorporated therein by reference or prepare, file and obtain effectiveness of such Registrable Securities (or that, if the Company has filed 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 NWI Group after it has not yet been declared effective, provided a Shelf Registration Notice to the Company will notify each Initiating Holder and any counsel, accountants or other representatives retained by NWI Group 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 NWI Group, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that effectsuch records, will documents or -------- ------- information which the Company determines in good faith to be confidential and notifies NWI Group, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by NWI Group, 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 NWI Group after it has provided a Shelf Registration Notice to the Company;
(l) use its reasonable best efforts to secure cause all Shelf Registrable Securities to be listed on any securities exchange on which similar securities issued by the effectiveness 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 NWI Group to furnish to the Company in writing such information regarding the proposed distribution by NWI Group 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, NWI Group 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 amendment and will immediately so notify each Initiating Holder when the amendment has amendments thereto have become effectiveeffective as contemplated by Section 4(e); each Initiating Holder will (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)), NWI Group shall not offer or sell all or any of such Shelf Registrable Securities pursuant to the Shelf Registration and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus may be used for such purpose; each Initiating Holder agrees that it will not sell any Registrable Securities pursuant to such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt of NWI Group receives copies of the supplemented or amended Shelf Prospectus provided for in contemplated by Section 2(d)(i)(A4(i) hereofhereof and receives notice that any post-effective amendment has become effective, or until it is advised in writing and, if so directed by the Company that the Prospectus may be usedCompany, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company NWI Group will use its reasonable best efforts deliver to ensure that the use of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or similar material event or (y) a determination by the Company that, in (at the judgment expense of the Company) all copies in its possession, public disclosure other than permanent file copies then in NWI Group's possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such material corporate development notice; (iii) all offers and sales by NWI Group under the Shelf Registration Statement shall be completed within sixty (60) days after the first date on which offers or similar material event would sales can be made pursuant to clause (i) above, and upon expiration of such sixty (60) day period, NWI Group will not be prejudicial 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) NWI Group and any of its partners, officers, directors or affiliates, if any, will comply with the 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 the CompanyShelf Registration Statement; (v) NWI Group and any of its 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) NWI Group and any of its partners, 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)
