Use Commercially Reasonable Efforts. In connection with the Corporation’s Registration obligations pursuant to this Agreement, the Corporation shall use its commercially reasonable efforts to expeditiously effect such Registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof and: (1) to prepare and file with the SEC a Registration Statement with respect to such Registrable Securities on any appropriate form under the 1933 Act, and to cause such Registration Statement to become effective and to remain continuously effective under the 1933 Act until (A) with respect to Registration Statements on Form S-3, the earlier of (i) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders or (ii) the date that all Registrable Securities covered by such Registration Statement may be sold by non-affiliates without volume or manner of sale restrictions under Rule 144, without the requirement for the Corporation to be in compliance with the current public information requirements under Rule 144, as determined by counsel to the Corporation pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Corporation’s transfer agent and the effected Holders and (B) with respect to Registration Statements on Form S-1, the earliest of (i) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, (ii) 180 calendar days from the effective date of the Registration Statement or (iii) the date that all Registrable Securities covered by such Registration Statement may be sold by non-affiliates without volume or manner of sale restrictions under Rule 144, without the requirement for the Corporation to be in compliance with the current public information requirements under Rule 144, as determined by counsel to the Corporation pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Corporation’s transfer agent and the effected Holders (the “Effectiveness Period”); (2) to (i) prepare and file with the SEC such amendments and supplements to such Registration Statement, and the prospectus used in connection with such Registration Statement, as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424 under the 1933 Act; (iii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible, provide the Holders true and complete copies of all correspondence from and to the SEC relating to such Registration Statement that pertains to the Holders as “Selling Stockholders” but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Corporation; and (iv) comply with the provisions of the 1933 Act and the 1934 Act with respect to the disposition of all Registrable Securities covered by a Registration Statement until such time as all of such Registrable Securities shall have been disposed of (subject to the terms of this Agreement) in accordance with the intended methods of disposition by the Holders thereof as set forth in such Registration Statement as so amended or in such Prospectus as so supplemented; provided, however, that each Holder shall be responsible for the delivery of the Prospectus to the Persons to whom such Holder sells any of the Registrable Securities (including in accordance with Rule 172 under the 1933 Act), and each Holder agrees to dispose of Registrable Securities in compliance with the plan of distribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement by reason of the Corporation filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Corporation shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report which created the requirement for the Corporation to amend or supplement such Registration Statement was filed); (3) to notify each Holder if it is selling Registrable Securities and the managing underwriter(s), if any, promptly if at any time (A) any Prospectus, Registration Statement or amendment or supplement thereto is proposed to be filed, (B) when the SEC notifies the Corporation whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on any Registration Statement (in which case the Corporation shall provide to each of the Holders true and complete copies of all comments that pertain to the Holders as a “Selling Stockholder” or to the “Plan of Distribution” and all written responses thereto, but not information that the Corporation believes would constitute material and non-public information), (C) any Registration Statement, or any post-effective amendment thereto, becomes effective, (D) the SEC or any other Governmental Authority requests any amendment or supplement to, or any additional information in respect of, any Registration Statement or Prospectus, (E) the SEC or any other Governmental Authority issues any stop order suspending the effectiveness of a Registration Statement or initiates any proceedings for that purpose, (F) the Corporation receives any notice that the qualification of any Registrable Securities for sale in any jurisdiction has been suspended or that any proceeding has been threatened or initiated for the purpose of suspending such qualification, or (G) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which they were made), not misleading; provided, however, that in the case of this subclause (G), such notice need only state that an event of such nature has occurred, without describing such event; (4) to use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as practicable; (5) if requested by the managing underwriter(s) or any Holder of Registrable Securities being sold in connection with an underwritten offering, to promptly incorporate into a Prospectus supplement or a post-effective amendment to the Registration Statement any information which the Corporation and such Holder reasonably agree is required to be included therein relating to such sale of Registrable Securities; and to file such supplement or post-effective amendment as soon as practicable in accordance with the 1933 Act; (6) to furnish to each Holder and each managing underwriter, if any, one signed copy of the Registration Statement and any post-effective amendment thereto, including all financial statements and schedules thereto, all documents incorporated therein by reference and all exhibits thereto (including exhibits incorporated by reference) as promptly as practicable after filing such documents with the SEC; (7) if Registrable Securities being sold in connection with an underwritten offering, to deliver to each Holder and each underwriter, if any, as many copies of the Prospectus or Prospectuses (including each preliminary Prospectus) and any amendment, supplement or exhibit thereto as such Persons may reasonably request; and to consent to the use of such Prospectus or any amendment, supplement or exhibit thereto by such Holder and underwriter, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus, amendment, supplement or exhibit in each case in accordance with the intended method or methods of disposition thereof; (8) prior to any public offering of Registrable Securities, to register or qualify, or to cooperate with each Holder, the underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from the registration or qualification) of, such Registrable Securities for resale under the securities or blue sky laws of such jurisdictions as may be requested by a Holder included in such Registration Statement; to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period; and to do any and all other acts or things necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by such Registration Statement; provided, however, that the Corporation will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service in any jurisdiction where it is not then so subject; (9) to cooperate with each Holder and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement and under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may reasonably request. Certificates for Registrable Securities free from all restrictive legends may be transmitted by the transfer agent to a Holder by crediting the account of such Holder’s prime broker with DTC as directed by such Holder; (10) upon the occurrence of any event described in clauses, (E), (F) or (G) of Section 4(a)(3) above, to prepare and file a supplement or post-effective amendment, including a post-effective amendment, to the affected Registration Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and any other required documents, so that, as thereafter delivered, such Registration Statement and Prospectus will not thereafter contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which they were made), not misleading; (11) to take all other actions in connection therewith as are reasonably necessary or desirable in order to expedite or facilitate the disposition of the Registrable Securities included in such Registration Statement and, in the case of an underwritten offering: (i) to enter into an underwriting agreement in customary form with the managing underwriter( s) (such agreement to contain standard and customary indemnities, representations, warranties and other agreements of or from the Corporation, as the case may be); (ii) to obtain opinions of counsel to the Corporation (which (if reasonably acceptable to the underwriter(s)) may be the Corporation’s inside counsel) addressed to the underwriter(s), such opinions to be in customary form; and (iii) to obtain “comfort” letters from the Corporation’s independent certified public accountants addressed to the underwriter( s), such letters to be in customary form; (12) to consider in good faith any reasonable request of any Holder and underwriters for the participation of management of the Corporation in “road shows” and similar sales events; (13) the Corporation shall cooperate with any registered broker through which a Holder proposes to resell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by any such Holder and subject to Section 5(b), the Corporation shall pay the filing fee required for the first such filing at the time such first filing is made; (14) the Corporation shall use its commercially reasonable efforts to maintain eligibility for use of Form S-3 (or any successor form thereto) for the Registration of the resale of Registrable Securities; (15) the Corporation shall otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act, including Rule 172, notify the Holders promptly if the Corporation no longer satisfies the conditions of Rule 172 and take such other actions as may be reasonably necessary to facilitate the Registration of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined below), an earnings statement covering a period of at least twelve (12) months, beginning after the effective date of each Registration Statement, which earning statement shall satisfy the provisions of Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder (for the purpose of this Section 4, “Availability Date” means the 45th calendar day following the end of the fourth fiscal quarter that includes the effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Corporation’s fiscal year, “Availability Date” means the 90th calendar day after the end of such fourth fiscal quarter); and
Appears in 2 contracts
Samples: Registration Rights Agreement (Equity Bancshares Inc), Registration Rights Agreement (Equity Bancshares Inc)
Use Commercially Reasonable Efforts. In connection with the CorporationSpinCo’s Registration registration obligations pursuant to this AgreementArticle II and Article III, the Corporation SpinCo shall use its commercially reasonable efforts to expeditiously effect such Registrations registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof andand pursuant thereto SpinCo shall as expeditiously as reasonably practicable, and as applicable:
(1a) to prepare and file with the SEC a Registration Statement with respect or Registration Statements relating to such Registrable Securities the registration on any appropriate form under the 1933 Securities Act, and to cause such Registration Statement to become effective as soon as reasonably practicable and to remain continuously effective for the time period required by this Agreement to the extent permitted under the 1933 Act until (A) with respect to Registration Statements on Form S-3, the earlier of (i) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders or (ii) the date that all Registrable Securities covered by such Registration Statement may be sold by non-affiliates without volume or manner of sale restrictions under Rule 144, without the requirement for the Corporation to be in compliance with the current public information requirements under Rule 144, as determined by counsel to the Corporation pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Corporation’s transfer agent and the effected Holders and (B) with respect to Registration Statements on Form S-1, the earliest of (i) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, (ii) 180 calendar days from the effective date of the Registration Statement or (iii) the date that all Registrable Securities covered by such Registration Statement may be sold by non-affiliates without volume or manner of sale restrictions under Rule 144, without the requirement for the Corporation to be in compliance with the current public information requirements under Rule 144, as determined by counsel to the Corporation pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Corporation’s transfer agent and the effected Holders (the “Effectiveness Period”)Act;
(2) to (ib) prepare and file with the SEC applicable Canadian Securities Authorities a Canadian Prospectus (and obtain a receipt therefor from the applicable Canadian Securities Authorities) or file a Canadian Shelf Prospectus Supplement in accordance with applicable Canadian Securities Laws, and take all actions necessary to continue to qualify such Registrable Securities for distribution in the applicable provinces and territories of Canada as long as may be necessary to complete the distribution of such Registrable Securities;
(c) except in the case of a Shelf Registration effected on Form S-3 or pursuant to a Canadian Shelf Prospectus, prepare and file with the SEC, as applicable, such amendments and supplements post-effective amendments to such each Registration Statement, and the prospectus used in connection with such Registration Statement, Statement as may be necessary to keep such Registration Statement continuously effective as to for the applicable Registrable Securities for its Effectiveness Period (ii) time period required by this Agreement; cause the Registration Statement, the related Prospectus and the Canadian Prospectus, as applicable, to be amended or supplemented by any required Prospectus supplement (subject or supplement to the terms of this Agreement)such Canadian Prospectus, and, and as so supplemented or amended, to be filed pursuant to Rule 424 under in accordance with the 1933 Securities Act; (iii) respond as promptly as reasonably practicable to , applicable Canadian Securities Laws and any comments received from the SEC with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible, provide the Holders true rules and complete copies of all correspondence from and to the SEC relating to such Registration Statement that pertains to the Holders as “Selling Stockholders” but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Corporationregulations promulgated thereunder; and (iv) otherwise comply with the provisions of the 1933 Securities Act and applicable Canadian Securities Laws as may be necessary to facilitate the 1934 disposition of all Registrable Securities covered by such Registration Statement and/or Canadian Prospectus during the applicable period in accordance with the intended method or methods of disposition by the selling Holders thereof set forth in such Registration Statement, Prospectus, Prospectus supplement, Canadian Prospectus or supplement to such Canadian Prospectus;
(d) in the case of a Shelf Registration effected on Form S-3 or pursuant to a Canadian Shelf Prospectus, prepare and file with the SEC and the applicable Canadian Securities Authorities such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement, and, as applicable, to such Canadian Shelf Prospectus or Canadian Shelf Prospectus Supplement as may be necessary to keep such Registration Statement and Canadian Shelf Prospectus or Canadian Shelf Prospectus Supplement effective and to comply with the provisions of the Securities Act and applicable Canadian Securities Laws with respect to the disposition of all Registrable Securities covered by subject thereto for a Registration Statement until such time as all of such Registrable Securities shall have been disposed period ending on the earlier of (subject to i) thirty-six (36) months after the terms effective date of this Agreement) in accordance with the intended methods of disposition by the Holders thereof as set forth in such Registration Statement as so amended plus the number of days that any filing or in such Prospectus as so supplemented; provided, however, that each Holder shall be responsible for effectiveness has been delayed under Section 2.3 and (ii) the delivery of the Prospectus to the Persons to whom such Holder sells any of date on which all the Registrable Securities (including in accordance with Rule 172 under the 1933 Act), and each Holder agrees to dispose of Registrable Securities in compliance with the plan of distribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws. In the case of amendments and supplements to a Registration Statement which are required to be filed subject thereto have been sold pursuant to this Agreement by reason of the Corporation filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Corporation shall have incorporated such report by reference into such Registration Statement. Prior to the expiration of any Canadian Shelf Prospectus, if applicableunless otherwise directed by the selling Holders, or SpinCo shall file use commercially reasonable efforts to renew such amendments or supplements Canadian Shelf Prospectus such that SpinCo shall at all relevant times required to comply with this Section 4.1(d) have an effective Canadian Shelf Prospectus with sufficient capacity to qualify the SEC on distribution of all the same day on which the 1934 Act report which created the requirement for the Corporation applicable Registrable Securities, subject to amend or supplement such Registration Statement was filed)Section 2.3;
(3e) to notify each Holder if it is the selling Registrable Securities Holders and the managing underwriter(s), if any, promptly if at any time (Ai) any Prospectus, Registration Statement Statement, Canadian Prospectus or amendment or supplement thereto is proposed to be filed, (B) when the SEC notifies the Corporation whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on any Registration Statement (in which case the Corporation shall provide to each of the Holders true and complete copies of all comments that pertain to the Holders as a “Selling Stockholder” or to the “Plan of Distribution” and all written responses thereto, but not information that the Corporation believes would constitute material and non-public information), (Cii) any Registration Statement, or any post-effective amendment thereto, becomes effective, (Diii) the SEC SEC, a Canadian Securities Authority or any other Governmental Authority requests any amendment or supplement to, or any additional information in respect of, any Registration Statement Statement, Prospectus, Canadian Prospectus or Canadian Shelf Prospectus, (Eiv) the SEC SEC, a Canadian Securities Authority or any other Governmental Authority issues any stop order suspending the effectiveness of a Registration Statement Statement, Canadian Prospectus or initiates any proceedings for that purpose, (Fv) the Corporation SpinCo receives any notice that the qualification of any Registrable Securities for sale in any jurisdiction has been suspended or that any proceeding has been threatened or initiated for the purpose of suspending such qualification, or (Gvi) of upon the occurrence discovery of any event or passage of time which requires that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement changes be made in such Registration Statement or any related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or Canadian Prospectus so that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it Canadian Prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement theretonot misleading, in light of the circumstances under which they were made), not misleading; made (provided, however, that that, in the case of this subclause (Gvi), such notice need only state that an event of such nature has occurred, without describing such event), (vii) of the determination by counsel of SpinCo that a post-effective amendment to a Registration Statement or Canadian Prospectus (including any amendment or supplement thereto) is advisable or (viii) if, at any time, the representations and warranties of SpinCo in any applicable underwriting agreement cease to be true and correct in all material respects. SpinCo hereby agrees to promptly reimburse any selling Holders for any reasonable out-of-pocket losses and expenses incurred in connection with any uncompleted sale of any Registrable Securities in the event that SpinCo fails to timely notify such Holder that the Registration Statement then on file with the SEC, or the Canadian Prospectus (including any amendment or supplement thereto) as filed with a Canadian Securities Authority, is no longer effective or qualifying the distribution of Registrable Securities, as applicable;
(4f) make every reasonable effort to use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of any order suspending the effectiveness of a Registration StatementStatement or Canadian Prospectus (or any amendment or supplement thereto), or the suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as practicableat the earliest reasonably practicable time;
(5g) if requested by the managing underwriter(s) or any Holder of Registrable Securities being sold in connection with an underwritten offering, to promptly incorporate into a Prospectus Prospectus, or a supplement or a post-effective amendment to the Registration Statement Statement, or into an amendment or supplement to a Canadian Prospectus any information which that the Corporation and managing underwriter(s), such Holder and SpinCo reasonably agree is required to be included therein relating to such sale of Registrable Securities; and to file such supplement or post-effective amendment as soon as practicable in accordance with the 1933 Securities Act, applicable Canadian Securities Laws and the rules and regulations promulgated thereunder;
(6h) to furnish to each upon the written request of a Holder and each or managing underwriter, if any, furnish to such Persons, one signed copy of the Registration Statement or Registration Statements, any SpinCo Free Writing Prospectus, or any Canadian Prospectus (and any amendments or supplements thereto) and any post-effective amendment thereto, including all financial statements and schedules thereto, all documents incorporated therein by reference and all exhibits thereto (including exhibits incorporated by reference) as promptly as practicable after filing such documents with the SECSEC and the Canadian Securities Authorities, as applicable;
(7i) if Registrable Securities being sold in connection with an underwritten offering, to deliver to each upon the written request of a Holder and each or managing underwriter, if any, deliver to such Persons, as many copies of the Prospectus or Prospectuses (including each preliminary Prospectus) ), or any Canadian Prospectus or Prospectuses and any amendment, supplement or exhibit thereto as such Persons may reasonably request; and to consent to the use of such Prospectus, Canadian Prospectus or any amendment, supplement or exhibit thereto by each such selling Holder and underwriter, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus, Canadian Prospectus, amendment, supplement or exhibit exhibit, in each case case, in accordance with the intended method or methods of disposition thereof;
(8) j) prior to any public offering of Registrable Securities, to register or qualify, or to cooperate with each Holderthe selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from the registration or qualification) of, such Registrable Securities for resale offer and sale under the securities or blue sky laws of such jurisdictions as may be requested by the Holders of a Holder majority of the Registrable Securities included in such Registration Statement; to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Periodperiod that the applicable Registration Statement is required to be maintained effective under this Agreement; and to do any and all other acts or things necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by such Registration Statement; provided, however, that the Corporation SpinCo will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which that would subject it to general service of process in any jurisdiction where it is not then so subject;
(9k) furnish to counsel selected by the Holders, prior to the filing of a Registration Statement, Prospectus, Canadian Prospectus or any supplement or post-effective amendment or any SpinCo Free Writing Prospectus thereto with the SEC and the applicable Canadian Securities Authorities, copies of such documents and with a reasonable and appropriate opportunity to review and comment on such documents, subject to such documents being under SpinCo’s control;
(l) cooperate with each Holder the selling Holders and the underwriter(s), if any, to facilitate in the timely preparation and delivery of certificates representing the Registrable Securities to be delivered to a transferee pursuant to the Registration Statementsold, which such certificates shall be free, to the extent permitted by the Purchase Agreement and under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as such selling Holders or underwriter(s) may request at least five (5) Business Days prior to any such Holders may reasonably request. Certificates for sale of Registrable Securities free from all restrictive legends may be transmitted by the transfer agent to a Holder by crediting the account of such Holder’s prime broker with DTC as directed represented by such Holdercertificates;
(10m) subject to Section 4.3, upon the occurrence of any event described in clauses, (ESection 4.1(e)(vi), (F) or (G) of Section 4(a)(3) above, to promptly prepare and file a supplement or post-effective amendment, including a post-effective amendment, amendment to the affected applicable Registration Statements or a supplement to the related Statement, Prospectus, Canadian Prospectus or any supplement or amendment thereto, or any document incorporated or deemed to be incorporated therein by reference, and any other required documents, so that, as thereafter delivered, that such Registration Statement and Prospectus Statement, Prospectus, Canadian Prospectus, any amendment or supplement thereto, will not thereafter contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement theretonot misleading, in light of the circumstances under which they were made), not misleadingand to cause such supplement or post-effective amendment to become effective as soon as practicable;
(11n) to take all other actions in connection therewith as are reasonably necessary or desirable in order to expedite or facilitate the disposition of the Registrable Securities included in such Registration Statement or Canadian Prospectus and, in the case of an underwritten offering: (i) to enter into an underwriting agreement in customary form with the managing underwriter( sunderwriter(s) (such agreement to contain standard and customary indemnities, representations, warranties and other agreements of or from the CorporationSpinCo, as the case may be); (ii) to obtain opinions of counsel to the Corporation SpinCo (which (which, if reasonably acceptable to the underwriter(s)) , may be the CorporationSpinCo’s inside counsel) addressed to the underwriter(s), such opinions to be in customary form; and (iii) to obtain “comfort” letters from the CorporationSpinCo’s independent certified public accountants addressed to the underwriter( sunderwriter(s), such letters to be in customary form;
(12o) with respect to each SpinCo Free Writing Prospectus or other materials to be included in the Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as defined in Rule 159A(b) promulgated under the Securities Act) such SpinCo Free Writing Prospectus or other materials without the Holders whose Registrable Securities are being registered having first been provided with a reasonable opportunity to review and comment on such documents;
(p) within the deadlines specified by the Securities Act, make all required filings of all Prospectuses and SpinCo Free Writing Prospectuses with the SEC;
(q) within the deadlines specified under applicable Canadian Securities Laws, make all required filings of any Canadian Prospectus or any amendment or supplement thereto with the applicable Canadian Securities Authorities;
(r) make available for inspection by any selling Holder of Registrable Securities, any underwriter(s) participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such selling Holder or underwriter(s) all reasonably requested financial and other records, pertinent corporate documents and properties of SpinCo; and cause SpinCo’s officers, directors, employees, attorneys and independent accountants to supply all information reasonably requested by any such selling Holders, underwriter(s), attorneys, accountants or agents in connection with such Registration Statement (each selling Holder of Registrable Securities agrees, on its own behalf and on behalf of all its underwriter(s), accountants, attorneys and agents, that the information obtained by it as a result of such inspections shall be kept confidential by it and, except as required by law, not disclosed by it, in each case, unless and until such information is made generally available to the public other than by such selling Holder; and each selling Holder of Registrable Securities further agrees, on its own behalf and on behalf of all its underwriter(s), accountants, attorneys and agents, that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, promptly give notice to SpinCo and allow SpinCo at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential);
(s) in the case of underwritten offerings, consider in good faith any reasonable request of any Holder the selling Holders and underwriters for the participation of management of the Corporation SpinCo in “road shows” and similar sales eventsevents during normal business hours, upon reasonable notice and in a manner that does not unreasonably interfere with the operations of SpinCo’s business;
(13t) the Corporation shall reasonably cooperate with any registered broker through which a Holder proposes to resell its the selling Holders and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel, in effecting a filing connection with FINRA pursuant any filings required to FINRA Rule 5110 as requested by be made with the Financial Industry Regulatory Authority or any such Holder and subject to Section 5(b), the Corporation shall pay the filing fee required for the first such filing at the time such first filing is madesimilar authority in Canada;
(14u) cause all Registrable Securities covered by the Corporation shall use its commercially reasonable efforts applicable Registration Statement to maintain eligibility for use of Form S-3 (be listed on each securities exchange on which Initial Common Shares are then listed or any successor form thereto) for the Registration of the resale of Registrable Securities;quoted; and
(15v) the Corporation shall otherwise use commercially reasonable efforts to comply with take all applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act, including Rule 172, notify the Holders promptly if the Corporation no longer satisfies the conditions of Rule 172 and take such other actions as may be customary steps reasonably necessary to facilitate effect the Registration registration or to qualify for the offer and sale of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined below), an earnings statement covering a period of at least twelve (12) months, beginning after the effective date of each Registration Statement, which earning statement shall satisfy the provisions of Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder (for the purpose of this Section 4, “Availability Date” means the 45th calendar day following the end of the fourth fiscal quarter that includes the effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Corporation’s fiscal year, “Availability Date” means the 90th calendar day after the end of such fourth fiscal quarter); andcontemplated hereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Bausch & Lomb Corp), Registration Rights Agreement (Bausch Health Companies Inc.)
Use Commercially Reasonable Efforts. In connection with the CorporationSolta’s Registration registration obligations pursuant to this AgreementArticle II and Article III, the Corporation Solta shall use its commercially reasonable efforts to expeditiously effect such Registrations registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof andand pursuant thereto Solta shall as expeditiously as reasonably practicable, and as applicable:
(1a) to prepare and file with the SEC a Registration Statement with respect or Registration Statements relating to such Registrable Securities the registration on any appropriate form under the 1933 Securities Act, and to cause such Registration Statement to become effective as soon as reasonably practicable and to remain continuously effective for the time period required by this Agreement to the extent permitted under the 1933 Act until Securities Act;
(Ab) with respect to except in the case of a Shelf Registration Statements effected on Form S-3, prepare and file with the earlier of (i) SEC, as applicable, such time amendments and post-effective amendments to each Registration Statement as all of the Registrable Securities covered by may be necessary to keep such Registration Statement have been publicly sold effective for the time period required by this Agreement; cause the Holders or (ii) Registration Statement and the date that related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed in accordance with the Securities Act and any rules and regulations promulgated thereunder; and otherwise comply with the provisions of the Securities Act as may be necessary to facilitate the disposition of all Registrable Securities covered by such Registration Statement may be sold by non-affiliates without volume or manner of sale restrictions under Rule 144, without during the requirement for the Corporation to be applicable period in compliance accordance with the current public information requirements under Rule 144, as determined intended method or methods of disposition by counsel to the Corporation pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Corporation’s transfer agent and the effected selling Holders and (B) with respect to Registration Statements on Form S-1, the earliest of (i) such time as all of the Registrable Securities covered by thereof set forth in such Registration Statement have been publicly sold by the HoldersStatement, (ii) 180 calendar days from the effective date of the Registration Statement Prospectus or (iii) the date that all Registrable Securities covered by such Registration Statement may be sold by non-affiliates without volume or manner of sale restrictions under Rule 144, without the requirement for the Corporation to be in compliance with the current public information requirements under Rule 144, as determined by counsel to the Corporation pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Corporation’s transfer agent and the effected Holders (the “Effectiveness Period”)Prospectus supplement;
(2c) to (i) in the case of a Shelf Registration effected on Form S-3, prepare and file with the SEC such amendments and supplements to such Registration Statement, Statement and the prospectus Prospectus used in connection with such Registration Statement, as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424 under the 1933 Act; (iii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible, provide the Holders true and complete copies of all correspondence from and to the SEC relating to such Registration Statement that pertains to the Holders as “Selling Stockholders” but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Corporation; and (iv) comply with the provisions of the 1933 Act and the 1934 Securities Act with respect to the disposition of all Registrable Securities covered by subject thereto for a Registration Statement until such time as all of such Registrable Securities shall have been disposed period ending on the earlier of (subject to i) thirty-six (36) months after the terms effective date of this Agreement) in accordance with the intended methods of disposition by the Holders thereof as set forth in such Registration Statement as so amended plus the number of days that any filing or in such Prospectus as so supplemented; provided, however, that each Holder shall be responsible for effectiveness has been delayed under Section 2.3 and (ii) the delivery of the Prospectus to the Persons to whom such Holder sells any of date on which all the Registrable Securities (including in accordance with Rule 172 under the 1933 Act), and each Holder agrees to dispose of Registrable Securities in compliance with the plan of distribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws. In the case of amendments and supplements to a Registration Statement which are required to be filed subject thereto have been sold pursuant to this Agreement by reason of the Corporation filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the 1934 Act, the Corporation shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report which created the requirement for the Corporation to amend or supplement such Registration Statement was filed);
(3d) to notify each Holder if it is the selling Registrable Securities Holders and the managing underwriter(s), if any, promptly if at any time (Ai) any Prospectus, Registration Statement or amendment or supplement thereto is proposed to be filed, (B) when the SEC notifies the Corporation whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on any Registration Statement (in which case the Corporation shall provide to each of the Holders true and complete copies of all comments that pertain to the Holders as a “Selling Stockholder” or to the “Plan of Distribution” and all written responses thereto, but not information that the Corporation believes would constitute material and non-public information), (Cii) any Registration Statement, or any post-effective amendment thereto, becomes effective, (Diii) the SEC or any other Governmental Authority requests any amendment or supplement to, or any additional information in respect of, any Registration Statement or Prospectus, (Eiv) the SEC or any other Governmental Authority issues any stop order suspending the effectiveness of a Registration Statement or initiates any proceedings for that purpose, (Fv) the Corporation Solta receives any notice that the qualification of any Registrable Securities for sale in any jurisdiction has been suspended or that any proceeding has been threatened or initiated for the purpose of suspending such qualification, or (Gvi) of upon the occurrence discovery of any event or passage of time which requires that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement changes be made in such Registration Statement or any related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or so that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it Prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement theretonot misleading, in light of the circumstances under which they were made), not misleading; made (provided, however, that that, in the case of this subclause (Gvi), such notice need only state that an event of such nature has occurred, without describing such event), (vii) of the determination by counsel of Solta that a post-effective amendment to a Registration Statement is advisable; or (viii) if, at any time, the representations and warranties of Solta in any applicable underwriting agreement cease to be true and correct in all material respects. Solta hereby agrees to promptly reimburse any selling Holders for any reasonable out-of-pocket losses and expenses incurred in connection with any uncompleted sale of any Registrable Securities in the event that Solta fails to timely notify such Holder that the Registration Statement then on file with the SEC is no longer effective or qualifying the distribution of Registrable Securities, as applicable;
(4e) make every reasonable effort to use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as practicableat the earliest reasonably practicable time;
(5f) if requested by the managing underwriter(s) or any Holder of Registrable Securities being sold in connection with an underwritten offering, to promptly incorporate into a Prospectus Prospectus, or a supplement or a post-effective amendment to the Registration Statement any information which that the Corporation and managing underwriter(s), such Holder and Solta reasonably agree is required to be included therein relating to such sale of Registrable Securities; and to file such supplement or post-effective amendment as soon as practicable in accordance with the 1933 ActSecurities Act and the rules and regulations promulgated thereunder;
(6g) to furnish to each upon the written request of a Holder and each or managing underwriter, if any, furnish to such Persons, one signed copy of the Registration Statement or Registration Statements or any Solta Free Writing Prospectus and any post-effective amendment thereto, including all financial statements and schedules thereto, all documents incorporated therein by reference and all exhibits thereto (including exhibits incorporated by reference) as promptly as practicable after filing such documents with the SEC;
(7h) if Registrable Securities being sold in connection with an underwritten offering, to deliver to each upon the written request of a Holder and each or managing underwriter, if any, deliver to such Persons, as many copies of the Prospectus or Prospectuses (including each preliminary Prospectus) ), and any amendment, supplement or exhibit thereto as such Persons may reasonably request; and to consent to the use of such Prospectus or any amendment, supplement or exhibit thereto by each such selling Holder and underwriter, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus, amendment, supplement or exhibit exhibit, in each case case, in accordance with the intended method or methods of disposition thereof;
(8) i) prior to any public offering of Registrable Securities, to register or qualify, or to cooperate with each Holderthe selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration or qualification (or exemption from the registration or qualification) of, such Registrable Securities for resale offer and sale under the securities or blue sky laws of such jurisdictions as may be requested by the Holders of a Holder majority of the Registrable Securities included in such Registration Statement; to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Periodperiod that the applicable Registration Statement is required to be maintained effective under this Agreement; and to do any and all other acts or things necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by such Registration Statement; provided, however, that the Corporation Solta will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which that would subject it to general service of process in any jurisdiction where it is not then so subject;
(9j) furnish to counsel selected by the Holders, prior to the filing of a Registration Statement, Prospectus or any Solta Free Writing Prospectus thereto with the SEC, copies of such documents and with a reasonable and appropriate opportunity to review and comment on such documents, subject to such documents being under Solta’s control;
(k) cooperate with each Holder the selling Holders and the underwriter(s), if any, to facilitate in the timely preparation and delivery of certificates representing the Registrable Securities to be delivered to a transferee pursuant to the Registration Statementsold, which such certificates shall be free, to the extent permitted by the Purchase Agreement and under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as such selling Holders or underwriter(s) may request at least five (5) Business Days prior to any such Holders may reasonably request. Certificates for sale of Registrable Securities free from all restrictive legends may be transmitted by the transfer agent to a Holder by crediting the account of such Holder’s prime broker with DTC as directed represented by such Holdercertificates;
(10l) subject to Section 4.3, upon the occurrence of any event described in clauses, (ESection 4.1(d)(vi), (F) or (G) of Section 4(a)(3) above, to promptly prepare and file a supplement or post-effective amendment, including a post-effective amendment, amendment to the affected applicable Registration Statements or a supplement to the related Statement, Prospectus or any document incorporated or deemed to be incorporated therein by reference, and any other required documents, so that, as thereafter delivered, that such Registration Statement and Statement, Prospectus or any amendment or supplement thereto, will not thereafter contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement theretonot misleading, in light of the circumstances under which they were made), not misleadingand to cause such supplement or post-effective amendment to become effective as soon as practicable;
(11m) to take all other actions in connection therewith as are reasonably necessary or desirable in order to expedite or facilitate the disposition of the Registrable Securities included in such Registration Statement and, in the case of an underwritten offering: (i) to enter into an underwriting agreement in customary form with the managing underwriter( sunderwriter(s) (such agreement to contain standard and customary indemnities, representations, warranties and other agreements of or from the CorporationSolta, as the case may be); (ii) to obtain opinions of counsel to the Corporation Solta (which (which, if reasonably acceptable to the underwriter(s)) , may be the CorporationSolta’s inside counsel) addressed to the underwriter(s), such opinions to be in customary form; and (iii) to obtain “comfort” letters from the CorporationSolta’s independent certified public accountants addressed to the underwriter( sunderwriter(s), such letters to be in customary form;
(12n) with respect to each Solta Free Writing Prospectus or other materials to be included in the Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as defined in Rule 159A(b) promulgated under the Securities Act) such Solta Free Writing Prospectus or other materials without the Holders whose Registrable Securities are being registered having first been provided with a reasonable opportunity to review and comment on such documents;
(o) within the deadlines specified by the Securities Act, make all required filings of all Prospectuses and Solta Free Writing Prospectuses with the SEC;
(p) make available for inspection by any selling Holder of Registrable Securities, any underwriter(s) participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by any such selling Holder or underwriter(s) all reasonably requested financial and other records, pertinent corporate documents and properties of Solta; and cause Solta’s officers, directors, employees, attorneys and independent accountants to supply all information reasonably requested by any such selling Holders, underwriter(s), attorneys, accountants or agents in connection with such Registration Statement (each selling Holder of Registrable Securities agrees, on its own behalf and on behalf of all its underwriter(s), accountants, attorneys and agents, that the information obtained by it as a result of such inspections shall be kept confidential by it and, except as required by law, not disclosed by it, in each case, unless and until such information is made generally available to the public other than by such selling Holder; and each selling Holder of Registrable Securities further agrees, on its own behalf and on behalf of all its underwriter(s), accountants, attorneys and agents, that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, promptly give notice to Solta and allow Solta at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential);
(q) in the case of underwritten offerings, consider in good faith any reasonable request of any Holder the selling Holders and underwriters for the participation of management of the Corporation Solta in “road shows” and similar sales eventsevents during normal business hours, upon reasonable notice and in a manner that does not unreasonably interfere with the operations of Solta’s business;
(13r) the Corporation shall reasonably cooperate with any registered broker through which a Holder proposes to resell its the selling Holders and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel, in effecting a filing connection with FINRA pursuant any filings required to FINRA Rule 5110 as requested by any such Holder and subject to Section 5(b), be made with the Corporation shall pay the filing fee required for the first such filing at the time such first filing is madeFinancial Industry Regulatory Authority;
(14s) cause all Registrable Securities covered by the Corporation shall use its commercially reasonable efforts applicable Registration Statement to maintain eligibility for use of Form S-3 (be listed on each securities exchange on which Solta Common Shares are then listed or any successor form thereto) for the Registration of the resale of Registrable Securities;quoted; and
(15t) the Corporation shall otherwise use commercially reasonable efforts to comply with take all applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act, including Rule 172, notify the Holders promptly if the Corporation no longer satisfies the conditions of Rule 172 and take such other actions as may be customary steps reasonably necessary to facilitate effect the Registration registration or to qualify for the offer and sale of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined below), an earnings statement covering a period of at least twelve (12) months, beginning after the effective date of each Registration Statement, which earning statement shall satisfy the provisions of Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder (for the purpose of this Section 4, “Availability Date” means the 45th calendar day following the end of the fourth fiscal quarter that includes the effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Corporation’s fiscal year, “Availability Date” means the 90th calendar day after the end of such fourth fiscal quarter); andcontemplated hereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Solta Medical Corp), Registration Rights Agreement (Solta Medical Corp)
