Terms and Conditions of Registration or Qualification. In connection with any registration statement filed pursuant to Section 6.1(a) or 6.1(b) hereof, the following provisions shall apply: (1) Each selling Securityholder shall, if requested by the managing underwriter, agree not to sell any Shares held by such selling Securityholder (other than the Shares so registered) for such period of time following the effective date of the registration statement relating to such offering, but in no event in excess of three (3) months in the case of a secondary offering, or such other longer period as the managing underwriter may require and the Company shall agree. (2) If the managing underwriter advises in writing that the inclusion in such registration or qualification of some or all of the Shares sought to be registered exceeds the number (the "Saleable Number") that can be sold in an orderly fashion within a price range acceptable to the Company, if such registration is being effected at the Company's determination, or holders of a Majority of the Shares of the Series A, B and E Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series A, B and E Preferred Stock or the holders of a Majority of the Shares of the Series C and D Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series C and D Preferred Stock, then the number of Shares offered shall be limited to the Saleable Number and shall be allocated as follows: (A) If such registration is being effected at the Company's determination to sell Shares for its own account, (1) first, all the Shares the Company proposes to register and (2) second, the difference between the Saleable Number and the number to be included pursuant to clause (1) above, allocated first to the Series A, B and E Holders and Series C and D Holders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such other Securityholder; and (B) in all other cases, including if the registration is being effected pursuant to a Demand Registration, (1) first, the entire Saleable Number allocated first to the holders of the Series A, B and E Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series A, B and E Preferred Stock, or to the holders of the Series C and D Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series C and D Preferred Stock, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder and (2) second, the difference (if positive) between the Saleable Number and the number to be included pursuant to clause (1) above, allocated to the Company. (3) The selling Securityholders will promptly provide the Company with such information concerning the selling Securityholder, its ownership of Shares and its intended methods of distribution as the Company shall reasonably request in order to prepare such registration statement and, upon the Company's request, each selling Securityholder shall provide such information in writing and signed by such Securityholder and stated to be specifically for inclusion in the registration statement. If the distribution of the Shares covered by the registration statement shall be effected by means of an underwriting, the right of any selling Securityholder to include its Shares in such registration shall be conditioned on such Securityholder's execution and delivery of a customary underwriting agreement with respect thereto; provided, however, that except with respect to information concerning such Securityholder and its ownership of Shares to be included in such registration and such Securityholder's intended manner of distribution of the Shares, no selling Securityholder shall be required to make any representations or warranties in such agreement as a condition to the inclusion of its Shares in such registration. (4) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(a), including the fees and disbursements of one counsel for the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders which shall be borne by the selling Securityholders. (5) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(b), including the fees and disbursement of one counsel to the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders, which shall be borne by the selling Securityholders. (6) Following the effective date of such registration statement, the Company shall, upon the request of the selling Securityholders, forthwith supply such number of prospectuses (including preliminary prospectuses and amendments and supplements thereto) meeting the requirements of the Securities Act or such other securities laws where the registration statement or prospectus has been filed and such other documents as are referred to in the registration statement as shall be requested by the selling Securityholders to permit such Securityholders to make a public distribution of their Shares, provided that the selling Securityholders furnish the Company with such appropriate information relating to such Securityholders' intentions in connection therewith as the Company shall reasonably request in writing. (7) The Company shall prepare and file such amendments and supplements to such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act or such other securities laws where the registration statement has been filed with the respect to the offer and sale or other disposition of the Shares covered by such registration statement during the period required for distribution of the Shares, which period shall not be in excess of six (6) months from the effective date of such registration statement or such longer period specified in the demand for registration. (8) The Company shall use its best efforts to register or qualify the Shares of the selling Securityholders covered by any such registration statement under such securities or Blue Sky laws in such jurisdictions as the Securityholders may request; provided, however, that the Company shall not be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified in order to comply with such request. (9) The Company will as expeditiously as possible: (A) cause the Shares covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the selling Securityholders to consummate the disposition of such Shares; (B) notify each selling Securityholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (C) cause all Shares covered by the registration statement to be listed on each securities exchange or designated for quotation on NASDAQ on which similar securities issued by the Company are then so listed or designated and, unless the same already exists, provide a transfer agent, registrar and CUSIP number for all such Shares not later than the effective date of the registration statement; (D) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the holders of a majority of the voting power of the Shares being sold or the underwriters retained by such holders, if any, reasonably request in order to expedite or facilitate the disposition of such Shares; (E) make available for inspection by any selling Securityholder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; (F) obtain "cold comfort" letters and updates thereof from the Company's independent public accountants and an opinion from the Company's counsel, in each case addressed to the selling Securityholders, in customary form and covering such matters of the type customarily covered by "cold comfort" letters and opinion of counsel, respectively, as the holders of a majority of the voting power of the Shares of the selling Securityholders shall request; (G) otherwise comply with all applicable rules and regulations of the Commission, and make available to its Securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and (H) cause its officers to use their reasonable best efforts to support the marketing of the Shares covered by the registration statement (including, without limitation, the participation in "road shows," at the request of the managing underwriter) taking into account the Company's business needs. (10) Each selling Securityholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.1(c)(ix)(B), such Securityholder will forthwith discontinue disposition of its Shares pursuant to the registration statement covering such Shares until such Securityholder's receipt of the copies of the supplemented or amended prospectus contemplated by such Section 6.1(c)(ix)(B) and, if so directed by the Company, such Securityholder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Securityholder's possession, of the prospectus covering such its Shares current at the time of receipt of such notice.
Appears in 2 contracts
Samples: Stockholders' Agreement (Reckson Services Industries Inc), Stockholders' Agreement (Vantas Inc)
Terms and Conditions of Registration or Qualification. In connection with any registration statement filed pursuant to Section 6.1(aSections 5.2(a) or 6.1(b5.2(b) hereof, the following provisions shall apply:.
(1i) Each selling Securityholder shallThe obligations of the Company to use its reasonable best efforts to cause the registration of Shares under the Securities Act are subject to the limitation, if requested by condition and qualification that the managing underwriter, agree not Company shall be entitled to sell any Shares held by such selling Securityholder (other than the Shares so registered) postpone for such a reasonable period of time following (but not exceeding 90 days in any one year period) the effective date filing of the any registration statement relating otherwise required to be filed by it if the Company in good faith determines that such offeringregistration and offering would (A) interfere with any financing, but acquisition, corporate reorganization or other material transaction or event involving the Company or any of its subsidiaries or (B) require premature disclosure thereof or of conditions, circumstances or events affecting the Company or the Company's industry which are not yet fully developed or ripe for disclosure, in no which event in excess of three (3) months in the case of a secondary offering, or such other longer period as the managing underwriter may require and the Company shall agreepromptly give the Securityholders requesting registration thereof written notice of such determination and an approximation of the anticipated delay. If the Company shall so postpone the filing of a registration statement, the Securityholders requesting registration shall have the right to withdraw the request for registration by giving written notice to the Company within 15 days after receipt of the notice of postponement and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which Holders are entitled under this Agreement.
(2ii) If the managing underwriter advises in writing that the inclusion in such registration or qualification of some or all of the Shares sought to be registered exceeds the number (the "Saleable Number") that can be sold in an orderly fashion within a price range acceptable to or without adversely affecting the Company, if such registration is being effected at the Company's determination, or holders of a Majority of the Shares of the Series A, B and E Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series A, B and E Preferred Stock or the holders of a Majority of the Shares of the Series C and D Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series C and D Preferred Stockoffering, then the number of Shares offered shall be limited to the Saleable Number and shall be allocated as follows:
(A) If such registration is being effected at the Company's determination pursuant to sell Shares for its own accounta Piggyback Registration, (1) first, all the Shares the Company (or in the exercise of demand registration rights by other stockholders of the Company, the selling stockholder(s) exercising such rights) proposes to register and (2) second, the difference between the Saleable Number and the number to be included pursuant to clause (1) above, allocated to the Preferred Stock Holders pro rata on the basis of the relative number of Shares offered for sale by each Preferred Stock Holder; and
(B) if such registration is being effected pursuant to a Demand Registration other than in connection with the first public offering of Common Stock of the Company after the date of this Agreement, (1) first, the entire Saleable Number allocated first to the Series A, B and E Holders and Series C and D Preferred Stock Holders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such other Securityholder; and
(B) in all other cases, including if the registration is being effected pursuant to a Demand Registration, (1) first, the entire Saleable Number allocated first to the holders of the Series A, B and E Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series A, B and E Preferred Stock, or to the holders of the Series C and D Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series C and D Preferred Stock, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder and (2) second, the difference (if positive) between the Saleable Number and the number to be included pursuant to clause (1) above, allocated to the Company; and
(C) if such registration is being effected pursuant to a Demand Registration and would be the first public offering of Common Stock after the date of this Agreement and the Company wishes to sell, for its own account, shares of Common Stock in such offering, then the Saleable Number shall be allocated evenly to the Purchasers, on one hand, and the Company, on the other hand, to the extent of the number of Shares offered by the Purchasers.
(3iii) The selling Securityholders will promptly provide the Company with such information concerning the selling Securityholder, its ownership of Shares and its intended methods of distribution as the Company shall reasonably request in order to prepare such registration statement and, upon the Company's request, each selling Securityholder shall provide such information in writing and signed by such Securityholder holder and stated to be specifically for inclusion in the registration statement. If In the event that the distribution of the Shares covered by the registration statement shall be effected by means of an underwriting, the right of any selling Securityholder to include its Shares in such registration shall be conditioned on such Securityholderholder's execution and delivery of a customary underwriting agreement with respect thereto; provided, however, that except with respect to information concerning such Securityholder and its ownership of Shares to be included in such registration holder and such Securityholderholder's intended manner of distribution of the Shares, no selling Securityholder shall be required (as a selling Securityholder exercising registration rights) to make any representations or warranties in such agreement as a condition to the inclusion of its Shares in such registration.
(4iv) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(a5.2(a), including the fees and disbursements of one counsel for the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders which shall be borne by the selling Securityholders.
(5v) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(b5.2(b), including excluding (A) the fees and disbursement disbursements of one counsel to for the selling Securityholders, except for and (B) the underwriting fees, discounts or commissions with respect to Shares of the selling Securityholders, which shall be borne by the selling Securityholders.
(6vi) Following the effective date of such registration statement, the Company shall, upon the request of the selling Securityholders, forthwith supply such number of prospectuses (including preliminary prospectuses and amendments and supplements thereto) meeting the requirements of the Securities Act or such other securities laws where the registration statement or prospectus has been filed and such other documents as are referred to in the registration statement as shall be requested by the selling Securityholders to permit such Securityholders holders to make a public distribution of their Shares, provided that the selling Securityholders furnish the Company with such appropriate information relating to such Securityholdersholders' intentions in connection therewith as the Company shall reasonably request in writing.
(7vii) The Company shall prepare and file such amendments and supplements to such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act or such other securities laws where the registration statement has been filed with the respect to the offer and sale or other disposition of the Shares shares covered by such registration statement during the period required for distribution of the Shares, which period shall not be in excess of six (6) months from the effective date of such registration statement or such longer period specified in the demand for registrationstatement.
(8) viii) The Company shall use its reasonable best efforts to register or qualify the Shares of the selling Securityholders covered by any such registration statement under such securities or Blue Sky laws in such jurisdictions as the Securityholders may reasonably request; provided, however, that the Company shall not be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified in order to comply with such request.
(9ix) The In connection with any registration pursuant to Article 5, the Company will as expeditiously as possible:
(A) cause the Shares covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the selling Securityholders to consummate the disposition of such Shares;
(B) notify each selling Securityholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(C) cause all Shares covered by the registration statement to be listed on each securities exchange or designated for quotation on NASDAQ on which similar securities issued by the Company are then so listed or designated and, unless the same already exists, provide a transfer agent, registrar and CUSIP number for all such Shares not later than the effective date of the registration statement;
(D) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the holders of a majority of the voting power of the Shares being sold or the underwriters retained by such holders, if any, reasonably request in order to expedite or facilitate the disposition of such Shares;
(E) make available for inspection by any selling Securityholder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such registration statement, provided that such Inspectors shall have first executed and delivered to the Company a confidentiality agreement in customary form protecting the confidentiality of such information;
(F) obtain "cold comfort" letters and updates thereof from the Company's independent public accountants and an opinion from the Company's counsel, in each case addressed to the selling Securityholders, counsel in customary form and covering such matters of the type customarily covered by "cold comfort" letters and opinion of counsel, respectively, as the holders of a majority of the voting power of the Shares of the selling Securityholders shall reasonably request;; and
(G) otherwise comply with all applicable rules and regulations of the Commission, and make available to its Securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(H) cause its officers to use their reasonable best efforts to support the marketing of the Shares covered by the registration statement (including, without limitation, the participation in "road shows," at the request of the managing underwriter) taking into account the Company's business needs.
(10x) Each selling Securityholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.1(c)(ix)(B5.2(c)(ix)(B), such Securityholder holder will forthwith discontinue disposition of its Shares pursuant to the registration statement covering such Shares until such Securityholderholder's receipt of the copies of the supplemented or amended prospectus contemplated by such Section 6.1(c)(ix)(B5.2(c)(ix)(B) and, if so directed by the Company, such Securityholder holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Securityholderholder's possession, of the prospectus covering such its Shares current at the time of receipt of such notice.
(xi) Each selling Securityholder agrees not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Shares of Common Stock, and not to effect any such public sale or distribution of any other equity security of the Company or of any security convertible into or exchangeable or exercisable for any equity security of the Company in each case, other than as part of an offering made pursuant to a registration statement filed and affected by this Agreement during the 15 days prior to, and during the 90-day period (or such longer period as each selling Securityholder agrees with the underwriter of such offering) beginning on the effective date of such registration statement (except as part of such registration) provided that each selling Securityholder has received written notice of such registration at least 15 days prior to such effective date.
Appears in 1 contract
Terms and Conditions of Registration or Qualification. In connection with any registration statement filed pursuant to Section Sections 6.1(a) or 6.1(b) hereof, the following provisions shall apply:.
(1i) Each selling Securityholder shallThe obligations of the Company to use its reasonable best efforts to cause the registration of Shares under the Securities Act are subject to the limitation, if requested by condition and qualification that the managing underwriter, agree not Company shall be entitled to sell any Shares held by such selling Securityholder (other than the Shares so registered) postpone for such a reasonable period of time following (but not exceeding 90 days in any one year period) the effective date filing of the any registration statement relating otherwise required to be filed by it if the Company in good faith determines that such offeringregistration and offering would (A) interfere with any financing, but acquisition, corporate reorganization or other material transaction or event involving the Company or any of its subsidiaries or (B) require premature disclosure thereof or of conditions, circumstances or events affecting the Company or the Company's industry which are not yet fully developed or ripe for disclosure, in no which event in excess of three (3) months in the case of a secondary offering, or such other longer period as the managing underwriter may require and the Company shall agreepromptly give the Securityholders requesting registration thereof written notice of such determination and an approximation of the anticipated delay. If the Company shall so postpone the filing of a registration statement, the Securityholders requesting registration shall have the right to withdraw the request for registration by giving written notice to the Company within 30 days after receipt of the notice of postponement and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which Securityholders are entitled under this Agreement.
(2ii) If the managing underwriter advises in writing that the inclusion in such registration or qualification of some or all of the Shares sought to be registered exceeds the number (the "Saleable Number") that can be sold in an orderly fashion within a price range acceptable to or without adversely affecting the Company, if such registration is being effected at the Company's determination, or holders of a Majority of the Shares of the Series A, B and E Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series A, B and E Preferred Stock or the holders of a Majority of the Shares of the Series C and D Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series C and D Preferred Stockoffering, then the number of Shares offered shall be limited to the Saleable Number and shall be allocated as follows:
(A) If such registration is being effected at the Company's determination pursuant to sell Shares for its own accounta Piggyback Registration, (1) first, all the Shares the Company (or in the exercise of demand registration rights by other stockholders of the Company, the selling stockholder(s) exercising such rights) proposes to register and (2) second, the difference between the Saleable Number and the number to be included pursuant to clause (1) above, allocated first to the Series A, B and E Holders and Series C and D Holders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such other Securityholder; and
(B) in all other cases, including if the such registration is being effected pursuant to a Demand Registration, (1) first, the entire Saleable Number allocated first to the holders Conversion Parties pro rata on the basis of the Series A, B and E Preferred Stock, if the Demand Registration was initiated relative number of Shares offered for sale by the holders of a Majority of the Shares of the Series A, B and E Preferred Stock, or to the holders of the Series C and D Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series C and D Preferred Stockeach such Conversion Party, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder and (2) second, the difference (if positive) between the Saleable Number and the number to be included pursuant to clause (1) above, allocated to the Company.
(3iii) The selling Securityholders will promptly provide the Company with such information concerning the selling Securityholder, its ownership of Shares and its intended methods of distribution as the Company shall reasonably request in order to prepare such registration statement and, upon the Company's request, each selling Securityholder shall provide such information in writing and signed by such Securityholder holder and stated to be specifically for inclusion in the registration statement. If In the event that the distribution of the Shares covered by the registration statement shall be effected by means of an underwriting, the right of any selling Securityholder to include its Shares in such registration shall be conditioned on such Securityholderholder's execution and delivery of a customary underwriting agreement with respect thereto; provided, however, that except with respect to information concerning such Securityholder and its ownership of Shares to be included in such registration holder and such Securityholderholder's intended manner of distribution of the Shares, no selling Securityholder shall be required (as a selling Securityholder exercising registration rights) to make any representations or warranties in such agreement as a condition to the inclusion of its Shares in such registration.
(4iv) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(a), including the fees and disbursements of one counsel for the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders which shall be borne by the selling Securityholders.
(5v) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(b), including excluding (A) the fees and disbursement disbursements of one counsel to for the selling Securityholders, except for and (B) the underwriting fees, discounts or commissions with respect to Shares of the selling Securityholders, which shall be borne by the selling Securityholders.
(6vi) Following the effective date of such registration statement, the Company shall, upon the request of the selling Securityholders, forthwith supply such number of prospectuses (including preliminary prospectuses and amendments and supplements thereto) meeting the requirements of the Securities Act or such other securities laws where the registration statement or prospectus has been filed and such other documents as are referred to in the registration statement as shall be requested by the selling Securityholders to permit such Securityholders holders to make a public distribution of their Shares, provided that the selling Securityholders furnish the Company with such appropriate information relating to such Securityholdersholders' intentions in connection therewith as the Company shall reasonably request in writing.
(7vii) The Company shall prepare and file such amendments and supplements to such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act or such other securities laws where the registration statement has been filed with the respect to the offer and sale or other disposition of the Shares shares covered by such registration statement during the period required for distribution of the Shares, which period shall not be in excess of six nine (69) months from the effective date of such registration statement or such longer period specified in the demand for registrationstatement.
(8) viii) The Company shall use its reasonable best efforts to register or qualify the Shares of the selling Securityholders covered by any such registration statement under such securities or Blue Sky laws in such jurisdictions as the Securityholders may reasonably request; provided, however, that the Company shall not be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified in order to comply with such request.
(9ix) The In connection with any registration pursuant to Article 6, the Company will as expeditiously as possible:
(A) cause the Shares covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the selling Securityholders to consummate the disposition of such Shares;
(B) notify each selling Securityholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(C) cause all Shares covered by the registration statement to be listed on each securities exchange or designated for quotation on NASDAQ on which similar securities issued by the Company are then so listed or designated and, unless the same already exists, provide a transfer agent, registrar and CUSIP number for all such Shares not later than the effective date of the registration statement;
(D) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the holders of a majority of the voting power of the Shares being sold or the underwriters retained by such holders, if any, reasonably request in order to expedite or facilitate the disposition of such Shares;
(E) make available for inspection by any selling Securityholder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such registration statement, provided that such Inspectors shall have first executed and delivered to the Company a confidentiality agreement in customary form protecting the confidentiality of such information;
(F) obtain "cold comfort" letters and updates thereof from the Company's independent public accountants and an opinion from the Company's counsel, in each case addressed to the selling Securityholders, counsel in customary form and covering such matters of the type customarily covered by "cold comfort" letters and opinion of counsel, respectively, as the holders of a majority of the voting power of the Shares of the selling Securityholders shall reasonably request;; and
(G) otherwise comply with all applicable rules and regulations of the Commission, and make available to its Securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(H) cause its officers to use their reasonable best efforts to support the marketing of the Shares covered by the registration statement (including, without limitation, the participation in "road shows," at the request of the managing underwriter) taking into account the Company's business needs.
(10x) Each selling Securityholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.1(c)(ix)(B), such Securityholder holder will forthwith discontinue disposition of its Shares pursuant to the registration statement covering such Shares until such Securityholderholder's receipt of the copies of the supplemented or amended prospectus contemplated by such Section 6.1(c)(ix)(B) and, if so directed by the Company, such Securityholder holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Securityholderholder's possession, of the prospectus covering such its Shares current at the time of receipt of such notice.
Appears in 1 contract
Samples: Stockholders' Agreement (Concorde Career Colleges Inc)
Terms and Conditions of Registration or Qualification. In connection with any registration statement filed pursuant to Section 6.1(a5.1(a) or 6.1(b5.1(b) hereof, the following provisions shall apply:
(1) Each selling Securityholder shall, if requested by the managing underwriter, agree not to sell any Shares held by such selling Securityholder (other than the Shares so registered) for such period of time following the effective date of the registration statement relating to such offering, but in no event in excess of three (3) months in the case of a secondary offering, or such other longer period as the managing underwriter may require and the Company shall agree.
(2i) If the managing underwriter advises in writing that the inclusion in such registration or qualification of some or all of the Shares Company Stock sought to be registered exceeds the number (the "Saleable NumberSALEABLE NUMBER") that can be sold in an orderly fashion within without a substantial risk that the price range acceptable per share to the Company, if be derived from such registration is being effected at the Company's determination, or holders of a Majority of the Shares of the Series A, B will be materially and E Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series A, B and E Preferred Stock or the holders of a Majority of the Shares of the Series C and D Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series C and D Preferred Stockadversely affected, then the number of Shares shares of Company Stock offered shall be limited to the Saleable Number and shall be allocated allocated, subject to Section 5.1(c)(ii) below, as follows:
(A) If if such registration is being effected in connection with an initial public offering of equity securities of the Company or, in the case of any Piggyback Registration requests by Stockholder for inclusion pursuant to Section 5(b), otherwise at the Company's determination to sell Shares Company Stock for its own account, (1) first, all the Shares shares of Company Stock the Company proposes to register and (2) second, the difference between the Saleable Number and the number to be included pursuant to clause (1) above, allocated first to the Series A, B and E Holders and Series C and D Holders among all selling Stockholders pro rata on the basis of the relative number of Shares shares of Company Stock offered for sale by each such SecurityholderStockholder; and
(B) If the registration is being effected pursuant to a Demand Registration other than in connection with an initial public offering of equity securities of the Company, and then the entire Saleable Number allocated among all other selling Securityholders Stockholders pro rata on the basis of the relative number of Shares offered for sale shares of Company Stock owned by each such other Securityholder; andStockholder with respect to any request by the Majority Series A Holders pursuant to Section 5(a);
(ii) Notwithstanding Sections 5.1(c)(i)(A) and (B) in all other cases, including if above:
(A) At any time prior to the effectiveness of the registration is being effected statement for any offering pursuant to a any Demand Registration (other that an initial public offering of equity securities of the Company) or any Piggyback Registration, (1) first, the Majority Series A Holders can give notice of their election to have the entire Saleable Number allocated first to the holders of the Series A, B and E A Preferred Stock, if the provided that such right can only be exercised with respect to one Demand Registration was initiated and one Piggyback Registration;
(B) In the event that the number of shares of Company Stock sought to be registered by the holders Majority Series A Holders pursuant to a Demand Registration under Section 5.1(a) in any registration statement filed hereunder exceeds the number of a Majority shares of Company Stock allocated to the Series A Preferred Holders pursuant to Sections 5.1(c)(i)(A) and (B) above, such that the number of shares of Company Stock allocated to the Series A Preferred Holders pursuant to Sections 5.1(c)(i)(A) and (B) above is less than two-thirds (2/3) of the Shares number of shares of Company Stock contained in the demand notice submitted by the Majority Series A Holders pursuant to a Demand Registration under Section 5.1(a), then the Series A, B and E A Preferred Stock, or to the holders of the Series C and D Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series C and D Preferred Stock, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder and (2) second, the difference (if positive) between the Saleable Number and the number to be included pursuant to clause Holders shall receive one (1) aboveadditional Demand Registration pursuant to Section 5.1(a), allocated exercisable in the same manner as the other Demand Registration rights granted to the CompanyMajority Series A Holders pursuant thereto.
(3iii) The selling Securityholders Stockholders will promptly provide the Company with such information concerning the selling Securityholder, its ownership of Shares and its intended methods of distribution as the Company shall reasonably request in order to prepare such registration statement and, upon the Company's request, each selling Securityholder Stockholder shall provide such information in writing and signed by such Securityholder holder and stated to be specifically for inclusion in the registration statement. If In the event that the distribution of the Shares Company Stock covered by the registration statement shall be effected by means of an underwriting, the right of any selling Securityholder Stockholder to include its Shares Company Stock in such registration shall be conditioned on such Securityholderholder's execution and delivery of a customary underwriting agreement, lock-up agreement for the lock-up period specified in the underwriting agreement (which shall not be less than one hundred eighty (180) days in connection with the Company's initial public offering and shall not be less than ninety (90) days in the case of any other underwritten offering), custody agreement, selling Stockholder power of attorney and similar agreements with respect thereto; providedPROVIDED, howeverHOWEVER, that except with respect to information concerning such Securityholder holder and its ownership of Shares to be included in -------- ------- such registration and such Securityholderholder's intended manner of distribution of the SharesCompany Stock, no selling Securityholder Stockholder shall be required to make any representations or warranties in such agreement as a condition to the inclusion of its Shares Company Stock in such registration.
(4iv) The Company shall bear all All fees and expenses in connection with the preparation and filing of any registration statement filed pursuant to
Section 5.1 (a) or 5.1(b) hereof (other than underwriting fees, discounts or commissions with respect to Company Stock of the selling Stockholders) shall be borne solely by the Company. In connection with the preparation and filing of any registration statement filed pursuant to Section 6.1(a5.1(a) or 5.1(b) hereof, the selling Stockholders shall be entitled to retain and be represented by one law firm, to be selected by the Majority Series A Holders (or in the case of any registration pursuant to Section 5.1(b), including if the Series A Preferred Holders are not selling Stockholders, then the holders of a majority of the shares of Common Stock of the selling Stockholders). The Company shall be obligated to pay the fees and disbursements expenses of one such counsel for the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders which shall be borne by the selling Securityholders.
(5) The Company shall bear all expenses so retained in connection with the preparation and filing of any such registration statement filed pursuant to statement. Nothing contained in this Section 6.1(b), including the fees and disbursement of one counsel to the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders, which 5.1(c)(iv) shall be borne by deemed to prohibit any selling Stockholder from retaining counsel of its own selection at its own expense in connection with the selling Securityholderspreparation and filing of such registration statement.
(6v) Following the effective date of such registration statement, the Company shall, upon the request of the selling SecurityholdersStockholders, forthwith supply such number of prospectuses (including preliminary prospectuses and amendments and supplements thereto) meeting the requirements of the Securities Act or such other securities laws where the registration statement or prospectus has been filed and such other documents as are referred to in the registration statement as shall be reasonably requested by the selling Securityholders to permit such Securityholders to make a public distribution of their Shares, provided that the selling Securityholders furnish the Company with such appropriate information relating to such Securityholders' intentions in connection therewith as the Company shall reasonably request in writingStockholders.
(7vi) The Company shall prepare and file such amendments and supplements to such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act or such other securities laws where the registration statement has been filed with the respect to the offer and sale or other disposition of the Shares Company Stock covered by such registration statement during the period required for distribution of the SharesCompany Stock, which period shall not be in excess of six sixty (660) months days from the effective date of such registration statement or such longer period specified in the demand for registrationstatement.
(8) vii) The Company shall use its best efforts to register or qualify the Shares Company Stock of the selling Securityholders Stockholders covered by any such registration statement under such securities or "Blue Sky Sky" laws in such jurisdictions as the Securityholders Stockholders may request; providedPROVIDED, howeverHOWEVER, that the Company shall not be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified in order to comply with such request.
(9viii) The In connection with any registration pursuant to Section 5.1 hereof, the Company will as expeditiously as possible:
(A) A. use reasonable best efforts to cause the Shares Company Stock covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the selling Securityholders Stockholders to consummate the disposition of such SharesCompany Stock;
(B) B. promptly notify each selling Securityholder Stockholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such SharesCompany Stock, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(C) C. cause all Shares Company Stock covered by the registration statement to be listed on each securities exchange or designated for quotation on NASDAQ system on which similar securities issued by the Company are then so listed or designated listed, and, unless the same already exists, provide a transfer agent, registrar and CUSIP number for all such Shares Company Stock not later than the effective date of the registration statement;
(D) D. enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the holders of a majority of the voting power of the Shares Company Stock being sold or the underwriters retained by such holders, if any, reasonably request in order to expedite or facilitate the disposition of such SharesCompany Stock;
(E) E. make available for inspection by any selling SecurityholderStockholder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement;
(F) obtain "cold comfort" letters and updates thereof from the Company's independent public accountants and an opinion from the Company's counsel, in each case addressed to the selling Securityholders, in customary form and covering such matters of the type customarily covered by "cold comfort" letters and opinion of counsel, respectively, as the holders of a majority of the voting power of the Shares of the selling Securityholders shall request;
(G) otherwise comply with all applicable rules and regulations of the Commission, and make available to its Securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(H) cause its officers to use their reasonable best efforts to support the marketing of the Shares covered by the registration statement (including, without limitation, the participation in "road shows," at the request of the managing underwriter) taking into account the Company's business needs.
(10) Each selling Securityholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.1(c)(ix)(B), such Securityholder will forthwith discontinue disposition of its Shares pursuant to the registration statement covering such Shares until such Securityholder's receipt of the copies of the supplemented or amended prospectus contemplated by such Section 6.1(c)(ix)(B) and, if so directed by the Company, such Securityholder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Securityholder's possession, of the prospectus covering such its Shares current at the time of receipt of such notice.
Appears in 1 contract
Terms and Conditions of Registration or Qualification. In ----------------------------------------------------- connection with any registration statement filed pursuant to Section 6.1(a) 2.1 or 6.1(b) 2.2 hereof, the following provisions shall apply:
(1a) Each selling Securityholder Stockholder shall, if requested by the managing underwriter, agree not to sell publicly any Shares held by such selling Securityholder Stockholder (other than the Shares so registered) for such period of time following the effective date of the registration statement relating to such offering, but in no event in excess of three (3) months in the case of a secondary offering180 days, or such other longer period as the managing underwriter may require and the Company shall agree.
(2b) If the managing underwriter advises in writing that the inclusion in such registration or qualification of some or all of the Shares sought to be registered exceeds the number (the "Saleable Number") that can be sold in an orderly fashion within a price range acceptable to the Company, if such registration is being effected at the Company's determination, or holders the selling Stockholders, in the case of a Majority of the Shares of the Series A, B and E Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series A, B and E Preferred Stock or the holders of a Majority of the Shares of the Series C and D Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series C and D Preferred StockDemand Registration, then the number of Shares offered shall be limited to the Saleable Number and shall be allocated as follows:
(Ai) If if such registration is being effected at the Company's determination to sell Shares for its own account, (1) first, all the Shares the Company proposes to register and (2) second, the difference between the Saleable Number and the number to be included pursuant to clause (1) above, allocated first to the Series A, B and E Holders and Series C and D Holders among all selling Stockholders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such other SecurityholderStockholder; and
(Bii) in all other cases, including if the registration is being effected pursuant to a Demand Registration, (1) first, the entire Saleable Number allocated first to the holders of the Series A, B and E Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series A, B and E Preferred Stock, or to the holders of the Series C and D Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series C and D Preferred Stock, and then among all other selling Securityholders Stockholders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder Stockholder and (2) second, the difference (if positive) between the Saleable Number and the number to be included pursuant to clause (1) above, allocated to the Company.
(3c) The selling Securityholders will Stockholders shall promptly provide the Company with such information concerning the selling Securityholder, its ownership of Shares and its intended methods of distribution as the Company shall reasonably request in order to prepare such registration statement and, upon the Company's request, each selling Securityholder such Stockholder shall provide such information in writing and signed by such Securityholder holder and stated to be specifically for inclusion in the registration statement. If In the event that the distribution of the Shares covered by the registration statement shall be effected by means of an underwriting, the right of any selling Securityholder Stockholder to include its Shares in such registration shall be conditioned on such SecurityholderStockholder's execution and delivery of a customary underwriting agreement with respect thereto; provided, however, that except with respect to information concerning such Securityholder and its ownership of Shares to be included in such registration Stockholder and such SecurityholderStockholder's intended manner of distribution of the Shares, no selling Securityholder Stockholder shall be required to make any representations or warranties in such agreement as a condition to the inclusion of its Shares in such registration.
(4d) The Company shall bear all All expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(a)2.1 or 2.2 hereof (other than underwriting fees, including the fees and disbursements of one counsel for the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders which Stockholders or fees and disbursements of counsel for such Stockholders) shall be borne solely by the selling SecurityholdersCompany.
(5) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(b), including the fees and disbursement of one counsel to the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders, which shall be borne by the selling Securityholders.
(6e) Following the effective date of such registration statement, the Company shall, upon the request of the selling SecurityholdersStockholders, forthwith supply such number of prospectuses (including preliminary prospectuses and amendments and supplements thereto) meeting the requirements of the Securities Act or such other securities laws where the registration statement or prospectus has been filed and such other documents as are referred to in the registration statement as shall be requested by the selling Securityholders Stockholders to permit such Securityholders Stockholders to make a public distribution of their Shares, provided that the selling Securityholders such Stockholders furnish the Company with such appropriate information relating to such Securityholdersholders' intentions in connection therewith as the Company shall reasonably request in writing.
(7f) The Company shall prepare and file such amendments and supplements to such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act or such other securities laws where the registration statement has been filed with the respect to the offer and sale or other disposition of the Shares covered by such registration statement during the period required for distribution of the Shares, which period shall not be in excess of six (6) months from the effective date of such registration statement or such longer period specified in the demand for registration.
(8) The Company shall use its best efforts to register or qualify the Shares of the selling Securityholders Stockholders covered by any such registration statement under such securities or Blue Sky blue sky laws in such jurisdictions as the Securityholders Stockholders may request; provided, however, that the Company shall not be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified in order to comply with such request.
(9g) The In connection with any registration pursuant to Article 2, the Company will as expeditiously as possible:
(Ai) cause the Shares covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the selling Securityholders Stockholders to consummate the disposition of such Shares;
(B) notify each selling Securityholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(Cii) cause all Shares covered by the registration statement to be listed on each securities exchange or designated for quotation on NASDAQ on which similar securities issued by the Company are then so listed or designated listed, and, unless the same already exists, provide a transfer agent, registrar and CUSIP number for all such Shares not later than the effective date of the registration statement;
(Diii) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the holders of a majority of the voting power of the Shares being sold or the underwriters retained by such holders, if any, reasonably request in order to expedite or facilitate the disposition of such Shares;
(Eiv) make available for inspection by any selling SecurityholderStockholder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement;
(Fv) obtain "cold comfort" letters and updates thereof from the Company's independent public accountants and an opinion from the Company's counsel, in each case addressed to the selling Securityholders, counsel in customary form and covering such matters of the type customarily covered by "cold comfort" letters and opinion opinions of counsel, respectively, as the holders of a majority of the voting power of the Shares of the selling Securityholders Stockholders shall request;; and
(Gvi) otherwise comply with all applicable rules and regulations of the Commission, and make available to its Securityholderssecurityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(H) cause its officers to use their reasonable best efforts to support the marketing of the Shares covered by the registration statement (including, without limitation, the participation in "road shows," at the request of the managing underwriter) taking into account the Company's business needs.
(10h) Each selling Securityholder agrees thatNotwithstanding anything herein to the contrary, upon receipt the Company shall not be required to register any Shares (i) representing less than 5% of the outstanding Common Stock Equivalents with respect to which the Company shall furnish an opinion of counsel reasonably acceptable to the holder thereof that such Shares may be distributed in the manner contemplated by the holder without registration under Rule 144(k) promulgated under the Securities Act, or (ii) pursuant to any Registration Demand in accordance with Section 2.1 if the gross proceeds from such registration and intended distribution are not reasonably anticipated to exceed $10,000,000 (or, in the case of any notice from the Company of the happening of any event of the kind described in Section 6.1(c)(ix)(B), such Securityholder will forthwith discontinue disposition of its Shares registration pursuant to the Form S-3, $5,000,000 or such lesser amount of proceeds as may be obtained in a registration statement covering such of all remaining Shares until such Securityholder's receipt of the copies of the supplemented or amended prospectus contemplated owned by such Section 6.1(c)(ix)(B) and, if so directed by the Company, such Securityholder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Securityholder's possession, of the prospectus covering such its Shares current at the time of receipt of such noticeany Stockholder).
Appears in 1 contract
Samples: Stockholders Agreement (Jeepers Inc)
Terms and Conditions of Registration or Qualification. In ----------------------------------------------------- connection with any registration statement filed pursuant to Section 6.1(aSections 5.2(a) or 6.1(b5.2(b) hereof, the following provisions shall apply:.
(1i) Each selling Securityholder shallThe obligations of the Company to use its reasonable best efforts to cause the registration of Shares under the Securities Act are subject to the limitation, if requested by condition and qualification that the managing underwriter, agree not Company shall be entitled to sell any Shares held by such selling Securityholder (other than the Shares so registered) postpone for such a reasonable period of time following (but not exceeding 90 days in any one year period) the effective date filing of the any registration statement relating otherwise required to be filed by it if the Company in good faith determines that such offeringregistration and offering would (A) interfere with any financing, but acquisition, corporate reorganization or other material transaction or event involving the Company or any of its subsidiaries or (B) require premature disclosure thereof or of conditions, circumstances or events affecting the Company or the Company's industry which are not yet fully developed or ripe for disclosure, in no which event in excess of three (3) months in the case of a secondary offering, or such other longer period as the managing underwriter may require and the Company shall agreepromptly give the Securityholders requesting registration thereof written notice of such determination and an approximation of the anticipated delay. If the Company shall so postpone the filing of a registration statement, the Securityholders requesting registration shall have the right to withdraw the request for registration by giving written notice to the Company within 15 days after receipt of the notice of postponement and, in the event of such withdrawal, such request shall not be counted for purposes of the requests for registration to which Holders are entitled under this Agreement.
(2ii) If the managing underwriter advises in writing that the inclusion in such registration or qualification of some or all of the Shares sought to be registered exceeds the number (the "Saleable Number") that can be sold in --------------- an orderly fashion within a price range acceptable to or without adversely affecting the Company, if such registration is being effected at the Company's determination, or holders of a Majority of the Shares of the Series A, B and E Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series A, B and E Preferred Stock or the holders of a Majority of the Shares of the Series C and D Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series C and D Preferred Stockoffering, then the number of Shares offered shall be limited to the Saleable Number and shall be allocated as follows:
(A) If such registration is being effected at the Company's determination pursuant to sell Shares for its own accounta Piggyback Registration, (1) first, all the Shares the Company (or in the exercise of demand registration rights by other stockholders of the Company, the selling stockholder(s) exercising such rights) proposes to register and (2) second, the difference between the Saleable Number and the number to be included pursuant to clause (1) above, allocated to the Preferred Stock Holders pro rata on the basis of the relative number of Shares offered for sale by each Preferred Stock Holder; and
(B) if such registration is being effected pursuant to a Demand Registration other than in connection with the first public offering of Common Stock of the Company after the date of this Agreement, (1) first, the entire Saleable Number allocated first to the Series A, B and E Holders and Series C and D Preferred Stock Holders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such other Securityholder; and
(B) in all other cases, including if the registration is being effected pursuant to a Demand Registration, (1) first, the entire Saleable Number allocated first to the holders of the Series A, B and E Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series A, B and E Preferred Stock, or to the holders of the Series C and D Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series C and D Preferred Stock, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder and (2) second, the difference (if positive) between the Saleable Number and the number to be included pursuant to clause (1) above, allocated to the Company; and
(C) if such registration is being effected pursuant to a Demand Registration and would be the first public offering of Common Stock after the date of this Agreement and the Company wishes to sell, for its own account, shares of Common Stock in such offering, then the Saleable Number shall be allocated evenly to the Purchasers, on one hand, and the Company, on the other hand, to the extent of the number of Shares offered by the Purchasers.
(3iii) The selling Securityholders will promptly provide the Company with such information concerning the selling Securityholder, its ownership of Shares and its intended methods of distribution as the Company shall reasonably request in order to prepare such registration statement and, upon the Company's request, each selling Securityholder shall provide such information in writing and signed by such Securityholder holder and stated to be specifically for inclusion in the registration statement. If In the event that the distribution of the Shares covered by the registration statement shall be effected by means of an underwriting, the right of any selling Securityholder to include its Shares in such registration shall be conditioned on such Securityholderholder's execution and delivery of a customary underwriting agreement with respect thereto; provided, however, that except with respect to information concerning such Securityholder and its ownership of Shares to be included in such registration -------- ------- holder and such Securityholderholder's intended manner of distribution of the Shares, no selling Securityholder shall be required (as a selling Securityholder exercising registration rights) to make any representations or warranties in such agreement as a condition to the inclusion of its Shares in such registration.
(4iv) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(a5.2(a), including the fees and disbursements of one counsel for the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders which shall be borne by the selling Securityholders.
(5v) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(b5.2(b), including excluding (A) the fees and disbursement disbursements of one counsel to for the selling Securityholders, except for and (B) the underwriting fees, discounts or commissions with respect to Shares of the selling Securityholders, which shall be borne by the selling Securityholders.
(6vi) Following the effective date of such registration statement, the Company shall, upon the request of the selling Securityholders, forthwith supply such number of prospectuses (including preliminary prospectuses and amendments and supplements thereto) meeting the requirements of the Securities Act or such other securities laws where the registration statement or prospectus has been filed and such other documents as are referred to in the registration statement as shall be requested by the selling Securityholders to permit such Securityholders holders to make a public distribution of their Shares, provided that the selling Securityholders furnish the Company with such appropriate information relating to such Securityholdersholders' intentions in connection therewith as the Company shall reasonably request in writing.
(7vii) The Company shall prepare and file such amendments and supplements to such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act or such other securities laws where the registration statement has been filed with the respect to the offer and sale or other disposition of the Shares shares covered by such registration statement during the period required for distribution of the Shares, which period shall not be in excess of six (6) months from the effective date of such registration statement or such longer period specified in the demand for registrationstatement.
(8) viii) The Company shall use its reasonable best efforts to register or qualify the Shares of the selling Securityholders covered by any such registration statement under such securities or Blue Sky laws in such jurisdictions as the Securityholders may reasonably request; provided, -------- however, that the Company shall not be required to execute a general ------- consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified in order to comply with such request.
(9ix) The In connection with any registration pursuant to Article 5, the Company will as expeditiously as possible:
(A) cause the Shares covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the selling Securityholders to consummate the disposition of such Shares;
(B) notify each selling Securityholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(C) cause all Shares covered by the registration statement to be listed on each securities exchange or designated for quotation on NASDAQ on which similar securities issued by the Company are then so listed or designated and, unless the same already exists, provide a transfer agent, registrar and CUSIP number for all such Shares not later than the effective date of the registration statement;
(D) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the holders of a majority of the voting power of the Shares being sold or the underwriters retained by such holders, if any, reasonably request in order to expedite or facilitate the disposition of such Shares;
(E) make available for inspection by any selling Securityholder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter (collectively, the "Inspectors"), all financial ---------- and other records, pertinent corporate documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such registration statement, provided that such Inspectors shall have first executed and delivered to the Company a confidentiality agreement in customary form protecting the confidentiality of such information;
(F) obtain "cold comfort" letters and updates thereof from the Company's independent public accountants and an opinion from the Company's counsel, in each case addressed to the selling Securityholders, counsel in customary form and covering such matters of the type customarily covered by "cold comfort" letters and opinion of counsel, respectively, as the holders of a majority of the voting power of the Shares of the selling Securityholders shall reasonably request;; and
(G) otherwise comply with all applicable rules and regulations of the Commission, and make available to its Securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(H) cause its officers to use their reasonable best efforts to support the marketing of the Shares covered by the registration statement (including, without limitation, the participation in "road shows," at the request of the managing underwriter) taking into account the Company's business needs.
(10x) Each selling Securityholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.1(c)(ix)(B5.2(c)(ix)(B), such Securityholder holder will forthwith discontinue disposition of its Shares pursuant to the registration statement covering such Shares until such Securityholderholder's receipt of the copies of the supplemented or amended prospectus contemplated by such Section 6.1(c)(ix)(B5.2(c)(ix)(B) and, if so directed by the Company, such Securityholder holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Securityholderholder's possession, of the prospectus covering such its Shares current at the time of receipt of such notice.
(xi) Each selling Securityholder agrees not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Shares of Common Stock, and not to effect any such public sale or distribution of any other equity security of the Company or of any security convertible into or exchangeable or exercisable for any equity security of the Company in each case, other than as part of an offering made pursuant to a registration statement filed and affected by this Agreement during the 15 days prior to, and during the 90-day period (or such longer period as each selling Securityholder agrees with the underwriter of such offering) beginning on the effective date of such registration statement (except as part of such registration) provided that each selling Securityholder has received written notice of such registration at least 15 days prior to such effective date.
Appears in 1 contract
Samples: Stockholders' Agreement (Concorde Career Colleges Inc)
Terms and Conditions of Registration or Qualification. In ----------------------------------------------------- connection with any registration statement filed pursuant to Section 6.1(a) or 6.1(b) hereof, the following provisions shall apply:
(1i) Each selling Securityholder shall, if requested by the managing underwriter, agree not to sell any Shares held by such selling Securityholder (other than the Shares so registered) for such period of time following the effective date of the registration statement relating to such offering, but in no event in excess of three (3) months in the case of a secondary offering, or such other longer period as the managing underwriter may require and the Company shall agree.
(2ii) If the managing underwriter advises in writing that the inclusion in such registration or qualification of some or all of the Shares sought to be registered exceeds the number (the "Saleable Number") that can ---------------- be sold in an orderly fashion within a price range acceptable to the Company, if such registration is being effected at the Company's determination, or holders of a Majority of the Shares of the Series A, A and Series B and E Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series A, B and E A Preferred Stock and Series B Preferred Stock, or the holders of a Majority of the Shares of the Series C and D Preferred Stock, if such registration is being effected at the request of the holders of a Majority of the Shares of Series C and D Preferred Stock, then the number of Shares offered shall be limited to the Saleable Number and shall be allocated as follows:
(A) If such registration is being effected at the Company's determination to sell Shares for its own account, (1) first, all the Shares the Company proposes to register and (2) second, the difference between the Saleable Number and the number to be included pursuant to clause (1) above, allocated first to the Series AA Holders, Series B and E Holders and Series C and D Holders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such other Securityholder; and
(B) in all other cases, including if the registration is being effected pursuant to a Demand Registration, (1) first, the entire Saleable Number allocated first to the holders of the Series A, A and Series B and E Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series A, A and Series B and E Preferred Stock, or to the holders of the Series C and D Preferred Stock, if the Demand Registration was initiated by the holders of a Majority of the Shares of the Series C and D Preferred Stock, and then among all other selling Securityholders pro rata on the basis of the relative number of Shares offered for sale by each such Securityholder and (2) second, the difference (if positive) between the Saleable Number and the number to be included pursuant to clause (1) above, allocated to the Company.
(3iii) The selling Securityholders will promptly provide the Company with such information concerning the selling Securityholder, its ownership of Shares and its intended methods of distribution as the Company shall reasonably request in order to prepare such registration statement and, upon the Company's request, each selling Securityholder shall provide such information in writing and signed by such Securityholder and stated to be specifically for inclusion in the registration statement. If the distribution of the Shares covered by the registration statement shall be effected by means of an underwriting, the right of any selling Securityholder to include its Shares in such registration shall be conditioned on such Securityholder's execution and delivery of a customary underwriting agreement with respect thereto; provided, however, that except with respect -------- ------- to information concerning such Securityholder and its ownership of Shares to be included in such registration and such Securityholder's intended manner of distribution of the Shares, no selling Securityholder shall be required to make any representations or warranties in such agreement as a condition to the inclusion of its Shares in such registration.
(4iv) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(a), including the fees and disbursements of one counsel for the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders which shall be borne by the selling Securityholders.
(5v) The Company shall bear all expenses in connection with the preparation of any registration statement filed pursuant to Section 6.1(b), including the fees and disbursement of one counsel to the selling Securityholders, except for the underwriting discounts or commissions with respect to Shares of the selling Securityholders, which shall be borne by the selling Securityholders.
(6vi) Following the effective date of such registration statement, the Company shall, upon the request of the selling Securityholders, forthwith supply such number of prospectuses (including preliminary prospectuses and amendments and supplements thereto) meeting the requirements of the Securities Act or such other securities laws where the registration statement or prospectus has been filed and such other documents as are referred to in the registration statement as shall be requested by the selling Securityholders to permit such Securityholders to make a public distribution of their Shares, provided that the selling Securityholders furnish the Company with such appropriate information relating to such Securityholders' intentions in connection therewith as the Company shall reasonably request in writing.
(7vii) The Company shall prepare and file such amendments and supplements to such registration statement as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act or such other securities laws where the registration statement has been filed with the respect to the offer and sale or other disposition of the Shares covered by such registration statement during the period required for distribution of the Shares, which period shall not be in excess of six (6) months from the effective date of such registration statement or such longer period specified in the demand for registration.
(8) viii) The Company shall use its best efforts to register or qualify the Shares of the selling Securityholders covered by any such registration statement under such securities or Blue Sky laws in such jurisdictions as the Securityholders may request; provided, however, that the Company shall not be -------- ------- required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified in order to comply with such request.
(9ix) The Company will as expeditiously as possible:
(A) cause the Shares covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the selling Securityholders to consummate the disposition of such Shares;
(B) notify each selling Securityholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(C) cause all Shares covered by the registration statement to be listed on each securities exchange or designated for quotation on NASDAQ on which similar securities issued by the Company are then so listed or designated and, unless the same already exists, provide a transfer agent, registrar and CUSIP number for all such Shares not later than the effective date of the registration statement;
(D) enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the holders of a majority of the voting power of the Shares being sold or the underwriters retained by such holders, if any, reasonably request in order to expedite or facilitate the disposition of such Shares;
(E) make available for inspection by any selling Securityholder, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter (collectively, the "Inspectors"), all ---------- financial and other records, pertinent corporate documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement;
(F) obtain "cold comfort" letters and updates thereof from the Company's independent public accountants and an opinion from the Company's counsel, in each case addressed to the selling Securityholders, in customary form and covering such matters of the type customarily covered by "cold comfort" letters and opinion of counsel, respectively, as the holders of a majority of the voting power of the Shares of the selling Securityholders shall request;
(G) otherwise comply with all applicable rules and regulations of the Commission, and make available to its Securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(H) cause its officers to use their reasonable best efforts to support the marketing of the Shares covered by the registration statement (including, without limitation, the participation in "road shows," at the request of the managing underwriter) taking into account the Company's business needs.
(10x) Each selling Securityholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.1(c)(ix)(B), such Securityholder will forthwith discontinue disposition of its Shares pursuant to the registration statement covering such Shares until such Securityholder's receipt of the copies of the supplemented or amended prospectus contemplated by such Section 6.1(c)(ix)(B) and, if so directed by the Company, such Securityholder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Securityholder's possession, of the prospectus covering such its Shares current at the time of receipt of such notice.
Appears in 1 contract
Samples: Stockholders' Agreement (Reckson Services Industries Inc)
