General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known. (b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph. (c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable. (d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter).
Appears in 4 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Focus Financial Partners Inc.), Operating Agreement (Focus Financial Partners Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its best efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission as soon as practicable after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4;
3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable., an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering;
3.1.17 until the date the Registrable Securities may be sold under Rule 144, in order to permit the Holders to conduct sales (dincluding continuous offerings based on market prices and block trades) The Holders of a majority of the Registrable Shares included in Securities offered pursuant to the Demand Request Registration Statement (the “Majority Requesting HoldersBrokerage Trades”) shall have the right to select the through two or more reputable investment banking firm banks or firms to manage the Demand Offering (which firms shall be represented by counsel other reputable broker-dealers designated by the CompanyCompany (“Financial Counterparties”): (a) enter into an equity distribution agreement or sales agreement with the Financial Counterparties, in customary form, which shall include, among other provisions, indemnities similar to those in Article IV, and representations, covenants and other indemnities and rights and obligations as are customary in equity distribution agreements for issuer ATM programs (including an obligation of the Company to reimburse the Financial Counterparties for the expense of one counsel to the Financial Counterparties), provided(b) notify the Holders of the identities of the Financial Counterparties, that such selection shall be subject (c) to the consent of extent requested by a Financial Counterparty in order to engage in Brokerage Trades, the Company shall allow the Financial Counterparties to conduct customary “underwriter’s due diligence” with respect to the Company, which consent shall not may be unreasonably withheld. If such firm or firms advise on a periodic “bring down” basis when the Company files periodic or current reports or there is material news about the Company, including (1) by using commercially reasonable efforts to cause its independent certified public accountants to provide to the Financial Counterparties a “cold comfort” letter in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Majority Requesting Holders that Financial Counterparties, (2) by using commercially reasonable efforts to cause its outside counsel to the inclusion of all Registrable Shares Company to deliver an opinion in form, scope and Synthetic Primary Shares requested substance as is customarily given in an underwritten public offering, including a standard “10b-5” letter for such offering, addressed to be included in the Demand Offering would materially Financial Counterparties, and adversely affect (3) by providing a standard officer’s certificate from the price chief executive officer or success chief financial officer, or other officers serving such functions, of the offering Company addressed to the Financial Counterparties and (a “Material Adverse Effect”), d) shall take such other reasonable action as requested by the Company shall include Financial Counterparties in such Demand Offering order to expedite or facilitate the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Brokerage Trades; and
3.1.18 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 4 contracts
Sources: Registration Rights Agreement (Kimbell Tiger Acquisition Corp), Registration Rights Agreement (Kimbell Tiger Acquisition Corp), Registration Rights Agreement (Kimbell Tiger Acquisition Corp)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of In connection with any Demand RequestShelf and/or Underwritten Takedown, the Company shall promptly (but in any event within use reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement are disposed of in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus as may be declared effective reasonably requested by the SEC Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are disposed of in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or such securities have been withdrawn;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriter(s) and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be reasonably necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly, and in no event later than two (2) Business Day, after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.9 permit a representative of the Holders (such representative to be selected by a majority-in-interest of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representative, or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to Company, prior to the release or disclosure of any such information;
3.1.10 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter(s) may reasonably request;
3.1.11 in the event of an Underwritten Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and a negative assurance letter, each dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the placement agent or sales agent, if any, and the Underwriter(s), if any, as the case may be, covering such legal matters with respect to the Registration in respect of which such opinion or negative assurance letter is being given as the participating Holders, placement agent, sales agent, or Underwriter, as the case may be, may reasonably request and as are customarily included in such opinions and negative assurance letters and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s) of such offering;
3.1.13 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.14 with respect to an Underwritten Offering pursuant to Section 2.4, which consent shall not be unreasonably withheld. If such firm or firms advise use commercially reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include Underwriter(s) in such Demand Offering Underwritten Offering; and
3.1.15 otherwise cooperate reasonably with, and take such customary actions as may reasonably be requested by the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among participating Holders, consistent with the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date terms of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) andAgreement, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)connection with such Registration.
Appears in 4 contracts
Sources: Registration Rights Agreement (ECARX Holdings Inc.), Registration Rights Agreement (COVA Acquisition Corp.), Registration Rights Agreement (ECARX Holdings Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) If at any time the number Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall, in a timely manner:
3.1.1 prepare and file a Registration Statement with the Commission as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 with respect to such Registrable Securities and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until the earlier of (a) all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or (b) the termination of this Agreement;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 use commercially reasonable efforts to cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus other than by way of a document incorporated by reference (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4) furnish a copy thereof to each seller of such Registrable Securities or its counsel, excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 in the event of an Underwritten Offering or a sale by a placement agent or sales agent pursuant to such Registration, permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders, Underwriter, placement agent or sales agent to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, placement agent, sales agent attorney or accountant in connection with the Registration; provided, however, that such representatives, Underwriters, placement agents, sales agents, attorneys or accountant enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information; and provided further, that the Company will not include the name of any Holder or any information regarding any Holder not participating in such sale pursuant to such Registration unless required by the Commission or any applicable law, rules or regulations;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering or a sale by a placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 otherwise use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission), and which consent shall not requirement will be unreasonably withheld. If such firm or firms advise deemed satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Majority Requesting Holders that Exchange Act and otherwise complies with Rule 158 under the inclusion Securities Act (or any successor rule promulgated thereafter by the Commission);
3.1.15 with respect to an Underwritten Offering pursuant to Section 2.2.3, if the Registration involves the Registration of all Registrable Shares and Synthetic Primary Shares requested Securities involving gross proceeds in excess of $50,000,000, use its commercially reasonable efforts to be included in the Demand Offering would materially and adversely affect the price or success make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”)road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration. Notwithstanding the foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or other sales agent or placement agent if such Demand Underwriter or other sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares or other offering involving a Registration and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)an Underwriter.
Appears in 4 contracts
Sources: Registration Rights Agreement (First Light Acquisition Group, Inc.), Registration and Stockholder Rights Agreement (OmniAb, Inc.), Merger Agreement (Avista Public Acquisition Corp. II)
General Procedures. (a) Each Demand Request shall specify: (i) If the number Company is required to effect the Registration of Registrable Shares proposed Securities pursuant to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestthis Agreement, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Holders or any Underwriter of Registrable Securities or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 not later than five (d5) The days prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such holders, provided, that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System (“▇▇▇▇▇”);
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence reasonably satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 use its commercially reasonable efforts to cause all such Registrable Securities included in any registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated or, if no such similar securities are then listed or designated, in a manner satisfactory to the holders of a majority-in-interest of the Registrable Securities included in such registration;
3.1.6 provide a transfer agent as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.9 permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Registration Statement, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.10 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration which the participating Holders may rely on, in customary form and covering such matters of the type customarily covered by “comfort” letters for transactions of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.11 on the date the Registrable Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters;
3.1.12 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.13 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission), and which consent shall not requirement will be unreasonably withheld. If such firm or firms advise deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K or 8-K under the Majority Requesting Holders that Exchange Act and otherwise complies with Rule 158 under the inclusion Securities Act;
3.1.14 if the Registration involves the Registration of all Registrable Shares and Synthetic Primary Shares requested Securities involving gross proceeds in excess of $60,000,000, use its commercially reasonable efforts to be included in the Demand Offering would materially and adversely affect the price or success make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”)road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.15 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, consistent with the terms of this Agreement, in connection with such Registration. Notwithstanding the foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if such Demand Underwriter, broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand RequestRegistration as an Underwriter, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement broker, sales agent or joinderplacement agent, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 4 contracts
Sources: Registration Rights Agreement (Citius Pharmaceuticals, Inc.), Registration Rights Agreement (Citius Pharmaceuticals, Inc.), Registration Rights Agreement (Citius Oncology, Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) If the number Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall, as expeditiously as possible:
3.1.1 prepare and file a Registration Statement with the Commission as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 with respect to such Registrable Securities and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective pursuant to the terms of this Agreement until all Registrable Securities covered by such Registration Statement have been sold in accordance with the intended plan of distribution of such Registrable Securities or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and each Holder of Registrable Securities included in such Registration, and such Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and each Holder of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission and publicly available pursuant to the Electronic Data Gathering Analysis and Retrieval System (“▇▇▇▇▇”);
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request (or provide evidence reasonably satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable any Holder of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 use its commercially reasonable efforts to cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 promptly following the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (other than by way of a document incorporated by reference) furnish a copy thereof to each seller of such Registrable Securities and its counsel, including, without limitation, providing copies promptly upon receipt of any comment letters received with respect to any such Registration Statement or Prospectus;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 in the event of an Underwritten Offering, a Block trade, or a sale by a broker, placement agent, or sales agent pursuant to such Registration Statement, in each of the foregoing cases solely to the extent customary for a transaction of its type, permit a representative of the Holders (such representative to be selected by a majority in interest of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that any such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters for a transaction of its type as the managing Underwriter(s) may reasonably request;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, in the event of an Underwritten Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Underwriters, the placement agent or sales agent, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Underwriters, placement agent or sales agent may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such Underwriters, placement agent or sales agent;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form and as agreed to by the Company, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission), which consent shall not requirement will be unreasonably withheld. If such firm or firms advise deemed satisfied if the Company timely files Forms 10-Q and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested 10-K, as may be required to be included filed under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in the Demand Offering would materially and adversely affect the price or success excess of $50,000,000, use its reasonable efforts to make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”)road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Company shall include in such Demand Offering participating Holders, consistent with the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date terms of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) andAgreement, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)connection with such Registration.
Appears in 4 contracts
Sources: Registration Rights Agreement (African Agriculture Holdings Inc.), Merger Agreement (10X Capital Venture Acquisition Corp. III), Merger Agreement (10X Capital Venture Acquisition Corp. II)
General Procedures. In connection with any Underwritten Offering contemplated by Section 2.03(a), the underwriting agreement into which each Selling Holder and the Company shall enter shall contain such representations, covenants, indemnities (asubject to Section 2.08) Each Demand Request and other rights and obligations as are customary in Underwritten Offerings of securities by the Company. No Selling Holder shall specify: be required to make any representations or warranties to, or agreements with, the Company or the Underwriters other than representations, warranties or agreements regarding (i) the number such Holder’s ownership of its Registrable Shares proposed Securities to be sold and or transferred, (ii) the such Selling Holder’s authority to enter into such underwriting agreement and to sell or transfer such securities, (iii) its intended method of dispositiondistribution and (iv) any other such matters or representations pertaining to compliance with securities laws as may be reasonably requested. If any Selling Holder disapproves of the terms of an Underwritten Offering contemplated by this Section 2.03, such Selling Holder may elect to withdraw therefrom by notice to the extent then known.
(b) Upon receipt of any Demand Request, Company and the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed HoldersManaging Underwriter; provided, however, that such withdrawal must be made at least one Business Day prior to the time of pricing of such Underwritten Offering to be effective; provided, further, that in the event the Managing Underwriter or Underwriters of any proposed Underwritten Offering advise the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery total amount of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder Registrable Securities that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect Holders intend to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition offering exceeds the inclusion of any Registrable Shares or any specified number of Registrable Shares that can be sold in such Demand Offering offering without being likely to have an adverse effect on the price to price, timing or distribution of the public per share of Class A Registrable Securities offered or the market for the Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand OfferingStock, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares amount of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares Securities requested to be included in such Underwritten Offering by the Holder that initiated such Underwritten Offering pursuant to Section 2.03(a) (the “Initiating Holder”) is reduced by 50% or more, the Initiating Holder will have the right to withdraw from such Underwritten Offering by delivering notice to the Company at least one Business Day prior to the time of pricing of such Underwritten Offering. If, pursuant to the preceding sentence, the entire Demand Offering would materially and adversely affect Registration Request is revoked, then, at the price or success option of the offering Holder or Holders who revoke such request, either (a “Material Adverse Effect”), i) such Holder or Holders shall reimburse the Company for all of its reasonable and documented incremental out-of-pocket expenses incurred in the preparation, filing and processing of the Registration Statement or prospectus supplement with respect to such requested Underwritten Offering, which incremental out-of-pocket expenses, for the avoidance of doubt, shall not include in such Demand Offering overhead expenses and which requested Underwritten Offering, whether or not completed, will not decrease the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among Underwritten Offerings the Holders who delivered shall have the Demand Request, the Other Requesting Persons right and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of option to request under this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Section 2.03.
Appears in 3 contracts
Sources: Registration Rights Agreement (Callon Petroleum Co), Exchange Agreement (Callon Petroleum Co), Registration Rights Agreement (Callon Petroleum Co)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (a) as may be declared effective reasonably requested by any Holder that holds at least five-percent (5%) of the Registrable Securities registered on such Registration Statement, any Underwriter or the Sponsor (provided that at the time of such request, the Sponsor holds at least 25% of the amount of outstanding shares of Common Stock of the Company that it held at the Closing), or (b) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as promptly as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (the “Majority Requesting Holders”) shall have the right subject to select the investment banking firm such Financial Counterparty providing such certification or firms to manage the Demand Offering (which firms shall be represented by counsel designated representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), providedin customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, that and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such selection shall be subject Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the consent participating Holders, the Financial Counterparty, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
3.1.13 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 with respect to an Underwritten Offering pursuant to subsection 2.1.5 use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 3 contracts
Sources: Registration Rights Agreement (NAAC Holdco, Inc.), Registration Rights Agreement (Bird Global, Inc.), Business Combination Agreement (Switchback II Corp)
General Procedures. (a) Each Demand Request In connection with any Shelf and/or Underwritten Takedown, PubCo shall specify: (i) use reasonable efforts to effect such Registration to permit the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto PubCo shall, as expeditiously as possible:
3.1.1 prepare and file with the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until such time as there are no longer any Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC as promptly as reasonably practicable.
any Holder that holds at least five (d5.0%) The Holders of a majority percent of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm Securities registered on such Registration Statement, or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of an Underwritten Takedown where the Synthetic Primary SharesSponsor (acting on behalf of the Sponsor Parties) is a Demanding Holder, the number Sponsor (acting on behalf of the Sponsor Parties), or any Underwriter of Registrable Shares Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by PubCo or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use reasonable efforts to (a) register or qualify the Standing Instructions Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of PubCo and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that PubCo shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action which would subject it to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by PubCo are then listed;
3.1.6 provide a transfer agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of this Agreement such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly, and in no event later than one Business Day, after it shall receive notice or joinderobtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly take all actions reasonably required to prevent the entry of any stop order or to obtain its withdrawal if such stop order should be entered;
3.1.8 at least five (5) Business Days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein) and thereafter, take reasonable account of comments of counsel to such seller;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as applicable then in effect, includes a Misstatement, and then promptly correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (plus such representative to be selected by a majority-in-interest of the participating Holders), the Underwriters, if any, and any additional attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense (other than with respect to Registration Expenses), in the preparation of the Registration Statement, and cause PubCo’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representative, or Underwriters enter into a confidentiality agreement, in customary form and substance reasonably satisfactory to PubCo, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from PubCo’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Registration, on the date the Registrable Shares acquired thereafterSecurities are delivered for sale pursuant to such Registration, obtain (a) an opinion, dated such date, of counsel representing PubCo for the purposes of such Registration, addressed to the participating Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions, and reasonably satisfactory to a majority-in-interest of the participating Holders, and (b) a negative assurance (“10b-5”) letter, dated such date, of counsel representing PubCo for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such 10b-5 letter is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such 10b-5 letters;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of PubCo’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.15 with respect to an Underwritten Offering pursuant to Section 2.4, use reasonable efforts to make available senior executives of PubCo to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration.
Appears in 3 contracts
Sources: Registration Rights Agreement (MoneyHero LTD), Registration Rights Agreement (MoneyHero LTD), Registration Rights Agreement (Bridgetown Holdings LTD)
General Procedures. In connection with any Underwritten Offering contemplated by Section 2.03(a), the underwriting agreement into which each Selling Holder and the Partnership shall enter shall contain such representations, covenants, indemnities (asubject to Section 2.08) Each Demand Request and other rights and obligations as are customary in Underwritten Offerings of securities by the Partnership. No Selling Holder shall specify: (i) be required to make any representations, warranties or covenants to or agreements with the number of Registrable Shares proposed Partnership or the underwriters other than representations, warranties, covenants or agreements regarding such Selling Holder, its authority to enter into and perform such underwriting agreement and to sell, and its ownership of, the securities whose offer and resale will be sold and (ii) the registered, on its behalf, its intended method of dispositiondistribution and any other representation required by law. If any Selling Holder disapproves of the terms of an Underwritten Offering contemplated by this Section 2.03, such Selling Holder may elect to withdraw therefrom by notice to the extent then known.
(b) Upon receipt of any Demand Request, Partnership and the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed HoldersManaging Underwriter; provided, however, that such withdrawal must be made at least one Business Day prior to the Company shall not provide time of pricing of such Underwritten Offering to be effective; provided, further, that in the event the Managing Underwriter or Underwriters of any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with proposed Underwritten Offering advise the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided Partnership that the delivery total amount of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder Registrable Securities that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect Holders intend to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition offering exceeds the inclusion of any Registrable Shares or any specified number of Registrable Shares that can be sold in such Demand Offering offering without being likely to have a material adverse effect on the price to price, timing or distribution of the public per share of Registrable Securities offered or the market for the Class A Common Stock in such Demand Offering being equal to Units or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand OfferingClass A Convertible Preferred Units, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares amount of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares Securities requested to be included in such Underwritten Offering by the Demand Holder that initiated such Underwritten Offering would materially and adversely affect pursuant to Section 2.03(a) (the price “Initiating Holder”) is reduced by 50% or success of the offering (a “Material Adverse Effect”)more, the Company shall include Initiating Holder will have the right to withdraw from such Underwritten Offering by delivering notice to the Partnership at least one Business Day prior to the time of pricing of such Underwritten Offering, in which case the Partnership will have no obligation to proceed with such Demand Underwritten Offering and such Underwritten Offering, whether or not completed, will not decrease the number of Registrable Shares Underwritten Offerings the Initiating Holder shall have the right and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among option to request under this Section 2.03. No such withdrawal or abandonment shall affect the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Partnership’s obligation to pay Registration Expenses.
Appears in 2 contracts
Sources: Registration Rights Agreement (Genesis Energy Lp), Class a Convertible Preferred Unit Purchase Agreement (Genesis Energy Lp)
General Procedures. (a) Each Demand Request shall specify: (i) In connection with the number of Registrable Shares proposed to be sold Company’s Registration obligations under Sections 2.1 and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request2.2, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file effect such Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable, and in connection therewith the Company shall, among other things:
3.1.1 prepare the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, and before filing a Registration Statement as soon as reasonably practicable or Prospectus, or any amendments or supplements thereto, (x) furnish to the underwriters, if any, and in no event later than sixty to the Holders of the Registrable Securities covered by such Registration Statement, copies of all documents prepared to be filed and (60y) days except in the case of a Registration under Section 2.2, not file any Registration Statement on Form S-1 and twenty (20or Prospectus or amendments or supplements thereto or any free writing prospectus related thereto to which the Investor Shareholder(s) days in or the case of Sponsor Representative, as applicable, requesting a Demand Registration or an Underwritten Shelf Takedown, as applicable, or the underwriters, if any, shall reasonably object;
3.1.2 as soon as reasonably practicable file with the SEC a Registration Statement on Form S-3 (orrelating to the Registrable Securities, in each caseincluding all exhibits and financial statements required by the SEC to be filed therewith, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act as soon as practicable thereafter;
3.1.3 prepare and file with the SEC such pre- and post-effective amendments to such Registration Statement and supplements to the Prospectus or any free writing prospectus related thereto as may be declared (a) reasonably requested by any participating Investor Shareholder, (b) reasonably requested by any participating Holder to the extent such request relates to information relating to such Holder, or (c) necessary to keep such Registration effective for the period of time required by this Agreement, and comply with provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by the sellers thereof set forth in such Registration Statement;
3.1.4 notify the participating Holders of Registrable Securities and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing (which, for the avoidance of doubt, may be via e-mail) and provide copies of the relevant documents, as soon as practicable after notice thereof is received by the Company (a) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable Prospectus or any amendment or supplement to such Prospectus or any free writing prospectus related thereto has been filed and/or used, (b) of any written comments by the SEC or any request by the SEC for amendments or supplements to such Registration Statement or such Prospectus or for additional information, (c) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (d) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement cease to be true and correct in all material respects, and (e) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
3.1.5 promptly notify each selling Holder of Registrable Securities and the managing underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) or any free writing prospectus related thereto or the information conveyed to any purchaser at the time of sale to such purchaser contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such Prospectus, any preliminary Prospectus, any free writing prospectus and any information conveyed to any purchaser at the time of the sale to such purchaser, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus, any free writing prospectus related thereto or any information conveyed to any purchaser at the time of the sale to such purchaser in order to comply with the Securities Act and, in either case as promptly as reasonably practicable.practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holders and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus, any free writing prospectus related thereto or any information conveyed to any purchaser at the time of the sale to such purchaser which shall correct such misstatement or omission or effect such compliance;
3.1.6 use its reasonable best efforts to prevent, or obtain the withdrawal of, any stop order or other order suspending the use of any Registration Statement, preliminary or final Prospectus;
3.1.7 use its reasonable best efforts to incorporate in a Prospectus supplement or post-effective amendment such information as (dx) The the managing underwriter or underwriters, (y) the participating Investor Shareholder(s) and (z) in the case of a Demand Registration by the Sponsor Representative, the Sponsor Representative agree should be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
3.1.8 furnish to each selling Holder of Registrable Securities and each underwriter, if any, without charge, as many conformed copies as such Holder or underwriter may reasonably request of the applicable Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference) and any free writing prospectus utilized in connection therewith;
3.1.9 deliver to each selling Holder of Registrable Securities and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary prospectus) and any amendment or supplement thereto or any free writing prospectus relating thereto as such Holder or underwriter may reasonably request (it being understood that the Company consents to the use of such Prospectus or any amendment or supplement thereto or any free writing prospectus relating thereto by each of the selling Holders of a majority Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Shares included Securities covered by such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
3.1.10 on or prior to the date on which the applicable Registration Statement is declared effective, use its reasonable best efforts to register or qualify, and cooperate with the selling Holders of Registrable Securities, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or Blue Sky laws of each state and other jurisdiction of the United States as any such selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing and do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for such period as required by Section 2.1.5;
3.1.11 cooperate with the selling Holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the selling Holders of Registrable Securities at least two (2) business days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;
3.1.12 use its reasonable best efforts to (a) cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities and (b) keep such registration or qualification in effect for so long as such registration statement remains in effect;
3.1.13 deliver promptly to counsel to the Holders of Registrable Securities and each underwriter, if any, participating in the offering of the Registrable Securities copies of all comment letters from the SEC or its staff with respect to such Registration Statement;
3.1.14 not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates, if applicable, for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company;
3.1.15 make such representations and warranties to the Holders of Registrable Securities being registered, and the underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in secondary underwritten public offerings;
3.1.16 enter into and perform its obligations under such customary agreements (including underwriting agreements in customary form) and take all such other actions as (x) the participating Investor Shareholder(s), (y) in the case of a Demand Request Registration by the Sponsor Representative, the Sponsor Representative or (z) the “Majority Requesting Holders”managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the registration and disposition of such Registrable Securities;
3.1.17 use its reasonable best efforts to obtain for delivery to the underwriter or underwriters, if any, an opinion or opinions from counsel for the Company (including outside counsel) shall have dated the right to select date of the investment banking firm or firms to manage closing(s) under the Demand Offering (underwriting agreement, in customary form, scope and substance, which firms opinions shall be represented by counsel designated by reasonably satisfactory to such underwriters and their respective counsel;
3.1.18 use its reasonable best efforts to, in the Company)case of an Underwritten Offering, provided, that such selection shall be subject obtain for delivery to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders managing underwriter or underwriters, a comfort letter from the Company’s independent certified public accountants (and, if necessary and to the extent that the inclusion Company or any business acquired after the date hereof has previously engaged such independent certified public accountants or independent auditors, any other independent certified public accountants or independent auditors of all Registrable Shares any Subsidiary of the Company or any business acquired by the Company for which financial statements and Synthetic Primary Shares requested financial data are required to be included in the Demand Offering would materially Registration Statement) in customary form and adversely affect the price or success covering such matters of the offering (a “Material Adverse Effect”)type customarily covered by comfort letters as the managing underwriter or underwriters reasonably request, the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of dated the date of this Agreement execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
3.1.19 use commercially reasonably efforts to cooperate with each seller of Registrable Securities and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA or joinderany securities exchange on which such Registrable Securities are traded or will be traded;
3.1.20 use commercially reasonably efforts to, to the extent required by the rules and regulations of FINRA, retain a Qualified Independent Underwriter (as such term is defined in FINRA Rule 5121(f)(12));
3.1.21 use its reasonable best efforts to comply with the Securities Act and, if applicable, make available to its securityholders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;
3.1.22 use its reasonably best efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable (plus Registration Statement from and after a date not later than the effective date of such Registration Statement;
3.1.23 use its reasonable best efforts to cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed or quoted;
3.1.24 subject to appropriate confidentiality arrangements, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by the participating Investor Shareholder(s) or the Sponsor Representative, by any additional Registrable Shares acquired thereafter) andunderwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such Investor Shareholder(s), Sponsor Representative or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors, employees, agents and representatives to, and use its reasonable best efforts to cause the independent public accountants who have certified its financial statements to, make themselves available to discuss the business of the Company and to supply all information requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility;
3.1.25 in the case of an Underwritten Offering, cause the Synthetic Primary Shares, senior executive officers of the number of Registrable Shares owned Company and its Subsidiaries to participate in the customary “road show” presentations that may be reasonably requested by the Standing Instructions Holders as managing underwriter or underwriters in any such Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto;
3.1.26 take all reasonable action to ensure that any free writing prospectus utilized in connection with any registration covered by Section 2.1 or Section 2.2 complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related Prospectus, Prospectus supplement and related documents, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the date of this Agreement or joindercircumstances under which they were made, as applicable (plus not misleading;
3.1.27 in connection with any additional Registrable Shares acquired thereafter).Underwritten Offering, if at any time the information conveyed to a
Appears in 2 contracts
Sources: Registration Rights Agreement (Clarivate Analytics PLC), Merger Agreement (Churchill Capital Corp)
General Procedures. (a) Each Demand Request The Company shall specify: (i) use its commercially reasonable efforts to effect such Registration to permit the number sale of such Registrable Shares proposed to be sold and (ii) Securities in accordance with the intended method plan of dispositiondistribution thereof, and pursuant thereto the Company shall, to the extent then known.applicable, as promptly as reasonably practicable:
(b) Upon receipt of any Demand Request3.1.1 prepare and file with the Commission, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders andtime frame required by Section 2.1.1, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until there are no longer any Registrable Securities outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters or Financial Counterparty, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 in accordance with Section 3.4 of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.11 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters or other Financial Counterparty facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all customary information reasonably requested by any such representative, Underwriter, Financial Counterparty, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or Financial Counterparty enter into confidentiality agreements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration (the “Majority Requesting Holders”) shall have the right subject to select the investment banking firm such Financial Counterparty providing such certification or firms to manage the Demand Offering (which firms shall be represented by counsel designated representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), providedin customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, that and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such selection shall be subject Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the consent participating Holders or the Financial Counterparty, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
3.1.14 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Underwriters or Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.15 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting agreement or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.16 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.17 if the Registration involves the Registration of Registrable Securities in an Underwritten Offering in excess of the Minimum Amount, which consent shall not be unreasonably withheld. If such firm or firms advise use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.18 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that Holders, in connection with such Registration. Notwithstanding the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Solid Power, Inc.), Business Combination Agreement (Decarbonization Plus Acquisition Corp III)
General Procedures. (a) Each Demand Request shall specify: (i) the number In connection with any Shelf and/or Shelf Takedown and/or other disposition of Registrable Shares proposed Securities pursuant to be sold and a registration statement contemplated herein (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestapplicable), the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (i) as may be reasonably requested by (x) the Sponsor or (y) any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or (z) any Underwriter of Registrable Securities or (ii) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders' legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System ("E▇▇▇▇");
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Clause 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Clause 3.4;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent pursuant to such Registration, in each of the following cases to the extent customary for a transaction of its type, permit a representative of the Holders, the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person's or entity's own expense, in the preparation of the Registration Statement, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a "cold comfort" letter from the Company's independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration (subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by the Company's independent registered public accountants and the Company's counsel) in customary form and covering such matters of the type customarily covered by "cold comfort" letters for a transaction of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion and negative assurance letter, each dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agents or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion or negative assurance letter, as applicable, is being given as the participating Holders, broker, placement agent, sales agent or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, as applicable;
3.1.13 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the broker, placement agent or sales agent of such offering or sale;
3.1.14 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company's first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.15 with respect to an Underwritten Offering pursuant to Clause 2.1.4, which consent shall not be unreasonably withheld. If such firm or firms advise use its commercially reasonable efforts to make available senior executives of the Company to participate in customary "road show" presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if such Demand Underwriter, broker, sales agent or placement agent has not then been selected with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Requestregistration as an Underwriter, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement broker, sales agent or joinderplacement agent, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pegasus Digital Mobility Acquisition Corp.), Registration Rights Agreement (Pegasus Digital Mobility Acquisition Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as promptly may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters or Financial Counterparty, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it receives notice or obtains knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders) and one additional representative of Cottonmouth or any of its Permitted Transferees if participating in such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, the Underwriters or other Financial Counterparty facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, Financial Counterparty, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or Financial Counterparty agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from all applicable independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (the “Majority Requesting Holders”) shall have the right subject to select the investment banking firm such Financial Counterparty providing such certification or firms to manage the Demand Offering (which firms shall be represented by counsel designated representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), providedin customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, that and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such selection shall be subject Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the consent participating Holders, the Financial Counterparty, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
3.1.13 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 with respect to an Underwritten Offering pursuant to subsection 2.1.5 use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Verde Clean Fuels, Inc.), Class a Common Stock Purchase Agreement (Verde Clean Fuels, Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) If at any time on or after the number date hereof the Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall:
3.1.1 prepare and file with the Commission a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by any Holder or any Underwriter of Registrable Securities or as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus and either (i) any Underwriter overallotment option has terminated by its terms or (ii) the Underwriters have advised the Company that they will not exercise such option or any remaining portion thereof;
3.1.3 furnish without charge to the Underwriters, if any, and each Holder of Registrable Securities included in such Registration, or such Holders’ legal counsel, copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus), and each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), and such other documents as promptly as the Underwriters and each Holder of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably practicable.
(d) The Holders of a majority request in order to facilitate the disposition of the Registrable Shares Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as any Holder of Registrable Securities included in the Demand Request such Registration Statement (the “Majority Requesting Holders”in light of their intended plan of distribution) shall have the right may reasonably request and (ii) take such action necessary to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated cause such Registrable Securities covered by the Company), Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that such selection the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 use commercially reasonable efforts to cause all such Registrable Securities to be listed on the primary securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or promptly upon filing, with respect to any document that is to be incorporated by reference into such Registration Statement or Prospectus), furnish a copy thereof to each seller of such Registrable Securities and its counsel, including, without limitation, providing copies promptly upon receipt of any comment letters received with respect to any such Registration Statement or Prospectus. The Company shall not include the name of any Holder or any information regarding any Holder in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent of the Companysuch Holder and providing each such Holder or its counsel a reasonable amount of time to review and comment on such applicable document, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), comments the Company shall include unless contrary to applicable law or the Company reasonably expects that so doing would cause the Prospectus to contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
3.1.9 in the event of an Underwritten Offering, permit the participating Holders to rely on any “cold comfort” letter from the Company’s independent registered public accountants provided to the managing Underwriter of such Demand offering;
3.1.10 in the event of an Underwritten Offering, permit the participating Holders to rely on any opinion(s) of counsel representing the Company for the purposes of such Registration issued to the managing Underwriter of such offering covering legal matters with respect to the Registration;
3.1.11 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.12 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
3.1.13 if the Registration involves the Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand RequestSecurities involving gross proceeds in excess of $40,000,000, the Other Requesting Persons and use its reasonable efforts to make available senior executives of the Company on to participate in customary “road show” presentations that may be reasonably requested by the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwriter thereof; and
3.1.14 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Perella Weinberg Partners), Business Combination Agreement (FinTech Acquisition Corp. IV)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect the Registration of Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as practicable:
(a) subject to Section 2.1, prepare and file with the Commission a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective pursuant to the terms of this Agreement until all of such Registrable Securities have been disposed of (if earlier);
(b) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all of such Registrable Securities have been disposed of (if earlier) in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c) prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and to one legal counsel selected by the Holders, copies of such Registration Statement as promptly proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as reasonably practicable.the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel selected by such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
(d) The prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of a majority Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Shares Securities included in such Registration Statement to consummate the Demand Request disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(the “Majority Requesting Holders”e) shall have the right use its commercially reasonable efforts to select the investment banking firm cause all such Registrable Securities to be listed on each securities exchange or firms to manage the Demand Offering (automated quotation system on which firms shall be represented by counsel designated similar securities issued by the Company are then listed;
(f) provide a transfer agent and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
(g) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(h) at least five days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
(i) notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
(j) permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
(k) obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request;
(l) on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated as of such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as are customarily included in such opinions and negative assurance letters;
(m) in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, on terms agreed to by the Company with the managing Underwriter of such offering;
(n) make available to its security holders, as soon as reasonably practicable, an earnings statement (which need not be audited) covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
(o) if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, which consent shall not be unreasonably withheld. If such firm or firms advise use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include Underwriter in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable Underwritten Offering; and
(plus any additional Registrable Shares acquired thereafterp) andotherwise, in good faith, take such customary actions necessary to effect the case registration of the Synthetic Primary Shares, the number of such Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Securities contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Atlas Technical Consultants, Inc.), Unit Purchase Agreement (Boxwood Merger Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time frame required by Section 2.1.1, a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.11 permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Prospectus, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission); provided that the Company and will not have any obligation to provide any document pursuant to this clause that is available on the Majority Requesting Holders that Commission’s E▇▇▇▇ system;
3.1.16 if the inclusion Registration involves the Registration of all Registrable Shares and Synthetic Primary Shares requested to be included Securities in the Demand an Underwritten Offering would materially and adversely affect the price or success in excess of the offering (a “Material Adverse Effect”)Minimum Amount, use its reasonable efforts to make available senior executives of the Company shall include to participate in such Demand Offering customary “road show” presentations that may be reasonably requested by the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus Underwriter in any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (New Era Helium Inc.), Registration Rights Agreement (Roth CH Acquisition v Co.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as promptly may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters or Financial Counterparty, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it receives notice or obtains knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters or other Financial Counterparty facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, Financial Counterparty, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or Financial Counterparty agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (the “Majority Requesting Holders”) shall have the right subject to select the investment banking firm such Financial Counterparty providing such certification or firms to manage the Demand Offering (which firms shall be represented by counsel designated representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), providedin customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, that and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such selection shall be subject Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the consent participating Holders, the Financial Counterparty, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
3.1.13 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 with respect to an Underwritten Offering pursuant to subsection 2.1.5 use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Verde Clean Fuels, Inc.), Business Combination Agreement (CENAQ Energy Corp.)
General Procedures. In connection with any Underwritten Offering contemplated by Section 2.02(a), the underwriting agreement into which each Selling Holder and the Company shall enter shall contain such representations, covenants, indemnities (asubject to Section 2.07) Each Demand Request and other rights and obligations as are customary in Underwritten Offerings of securities by the Company. No Selling Holder shall specify: be required to make any representations or warranties to, or agreements with, the Company or the Underwriters other than representations, warranties or agreements regarding such Selling Holder’s authority to enter into such underwriting agreement and to sell, and its ownership of, the securities being registered on its behalf, its intended method of distribution and any other representation required by law; provided, that no Holder may sell Registrable Securities in any offering pursuant to an Underwritten Offering unless it (i) agrees to sell such Registrable Securities on the number of Registrable Shares proposed same basis provided in the underwriting or other distribution arrangements approved by the Company and the Holder that initiated such Underwritten Offering pursuant to be sold Section 2.02(a) (the “Initiating Holder”) that apply to the Company and/or the Initiating Holder and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, lockups and other documents reasonably required under the intended method terms of dispositionsuch arrangements. If any Selling Holder disapproves of the terms of an Underwritten Offering contemplated by this Section 2.02, such Selling Holder may elect to withdraw therefrom by notice to the extent then known.
(b) Upon receipt of any Demand Request, Company and the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed HoldersManaging Underwriter; provided, however, that such withdrawal must be made at any time prior to the execution of an underwriting agreement for such Underwritten Offering to be effective; provided, further, that in the event the Managing Underwriter or Underwriters of any proposed Underwritten Offering advise the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery total amount of Registrable Securities that Holders intend to include in such Demand Notice offering exceeds the number that can be sold in such offering without being likely to have an adverse effect on the price, timing or distribution of the Registrable Securities offered or the market for shares of Company Common Stock, and the amount of Registrable Securities requested to be included in such Underwritten Offering by the Initiating Holder is reduced by 50% or more, the Initiating Holder will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable right to withdraw from such Underwritten Offering by delivering written notice to the Company within at any time prior to the execution of an underwriting agreement for such period of time specified by Underwritten Offering, in which case the Company in will have no obligation to proceed with such Demand Notice (but Underwritten Offering and such Underwritten Offering, whether or not to exceed five (5) days)completed, to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition will not decrease the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on Underwritten Offerings the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Initiating Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right and option to select the investment banking firm request under this Section 2.02. No such withdrawal or firms to manage the Demand Offering (which firms abandonment shall be represented by counsel designated by affect the Company), provided, that such selection shall be subject ’s obligation to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)pay Registration Expenses.
Appears in 2 contracts
Sources: Registration Rights and Lock Up Agreement (Archrock, Inc.), Purchase and Sale Agreement (Archrock, Inc.)
General Procedures. In connection with any Underwritten Offering contemplated by Section 2.03(a), the underwriting agreement into which each Selling Holder and the Company shall enter shall contain such representations, covenants, indemnities (asubject to Section 2.09) Each Demand Request and other rights and obligations as are customary in Underwritten Offerings of securities by the Company. No Selling Holder shall specify: be required to make any representations or warranties to, or agreements with, the Company or the Underwriters other than representations, warranties or agreements regarding (i) the number such Holder’s ownership of its Registrable Shares proposed Securities to be sold and or transferred, (ii) the such Selling Holder’s authority to enter into such underwriting agreement and to sell or transfer such securities, (iii) its intended method of dispositiondistribution and (iv) any other such matters or representations pertaining to compliance with securities laws as may be reasonably requested. If any Selling Holder (which, for the avoidance of doubt, shall include the Initiating Holder) disapproves of the terms of an Underwritten Offering contemplated by this Section 2.03, such Selling Holder may elect to withdraw therefrom by notice to the extent then known.
(b) Upon receipt of any Demand Request, Company and the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed HoldersManaging Underwriter; provided, however, that such withdrawal must be made prior to the Company shall not provide any Demand Notice time of pricing of such Underwritten Offering to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated toeffective. If, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Datesentence, the Company entire Demand Registration Request is revoked, then, at the option of the Holder or Holders who revoke such request, Holder or Holders shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by reimburse the Company for all of its own account (reasonable and documented incremental out-of-pocket expenses incurred in the “Synthetic Primary Shares”) preparation, filing and use processing of the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant Registration Statement or prospectus supplement with respect to such Standing Instructions and pay related fees and requested Underwritten Offering, which incremental out-of-pocket expenses. In such event, such Standing Instructions Holders for the avoidance of doubt, shall not be included in a Demand Offering for a “bought deal” include overhead expenses and which requested Underwritten Offering, whether or an “overnight” Public Offering. In additionnot completed, no Non-Private Equity will not decrease the number of Underwritten Offerings the Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right and option to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of request under this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Section 2.03.
Appears in 2 contracts
Sources: Registration Rights Agreement (Callon Petroleum Co), Membership Interest Purchase Agreement (Callon Petroleum Co)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission within the time frame required by Section 2.1.1 a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders of Registrable Securities or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system’
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its best efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders of Registrable Securities at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders of Registrable Securities, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders of such Registrable Securities, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if an Underwritten Offering pursuant to an Underwritten Demand involves Registrable Securities involving gross proceeds in excess of $50,000,000, which consent shall not be unreasonably withheld. If such firm or firms advise use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include Underwriter in such Demand Offering Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the number Holders of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) andSecurities, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)connection with such Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fisker Inc./De), Business Combination Agreement (Spartan Energy Acquisition Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including pursuant to a Member Distribution), and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as promptly may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters or Financial Counterparty, if any, and the Holders of a majority Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request to facilitate the disposition of the Registrable Shares Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Demand Request Registrable Securities are exempt from such registration or qualification) and (the “Majority Requesting Holders”b) shall have the right take such action necessary to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated cause such Registrable Securities covered by the Company), Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that such selection the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to the consent general service of the Company, process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which consent shall not be unreasonably withheld. If such firm or firms advise similar securities issued by the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter).are then listed;
Appears in 2 contracts
Sources: Business Combination Agreement (ESGEN Acquisition Corp), Business Combination Agreement (ESGEN Acquisition Corp)
General Procedures. (a) Each Demand Request shall specify: (i) If the number Company is required to effect the Registration of Registrable Shares proposed Securities pursuant to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestthis Agreement, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Holders or any Underwriter of Registrable Securities or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 not later than five (d5) The days prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such holders, provided, that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System (“E▇▇▇▇”);
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence reasonably satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 use its commercially reasonable efforts to cause all such Registrable Securities included in any registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated or, if no such similar securities are then listed or designated, in a manner satisfactory to the holders of a majority-in-interest of the Registrable Securities included in such registration;
3.1.6 provide a transfer agent as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.9 permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Registration Statement, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.10 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration which the participating Holders may rely on, in customary form and covering such matters of the type customarily covered by “comfort” letters for transactions of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.11 on the date the Registrable Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters;
3.1.12 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.13 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission), and which consent shall not requirement will be unreasonably withheld. If such firm or firms advise deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K or 8-K under the Majority Requesting Holders that Exchange Act and otherwise complies with Rule 158 under the inclusion Securities Act;
3.1.14 if the Registration involves the Registration of all Registrable Shares and Synthetic Primary Shares requested Securities involving gross proceeds in excess of $60,000,000, use its commercially reasonable efforts to be included in the Demand Offering would materially and adversely affect the price or success make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”)road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.15 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, consistent with the terms of this Agreement, in connection with such Registration. Notwithstanding the foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if such Demand Underwriter, broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand RequestRegistration as an Underwriter, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement broker, sales agent or joinderplacement agent, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (10XYZ Holdings LP), Registration Rights Agreement (TenX Keane Acquisition)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days with the Commission, within the time frame required by subsection 2.1.1 or in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of filed pursuant to subsection 2.1.3, as soon as practicable, a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving with respect to such Demand Request (the “Required Filing Date”) Registrable Securities and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act of the happening of any event as a result of which a Misstatement exists, and then to use best efforts to correct such Misstatement as soon as possible and otherwise as set forth in Section 3.4 of this Agreement;
3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such Person’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain comfort letters from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and customary negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 2 contracts
Sources: Investor Rights Agreement (Sunlight Financial Holdings Inc.), Investor Rights Agreement (Spartan Acquisition Corp. II)
General Procedures. In connection with its obligations contained in Section 2.1, Section 2.2 and Section 2.3, the Partnership will:
(a) Each Demand Request shall specify: prepare and file with the Commission such amendments and supplements to the applicable registration statement and the prospectus included therein as may be necessary to keep such registration statement effective for the Effectiveness Period and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement;
(b) furnish to the Noteholder Representative (i) the number as far in advance as reasonably practicable before filing any registration statement contemplated by this Agreement, or any supplement or amendment thereto, reasonably complete drafts of Registrable Shares all such documents proposed to be sold filed (including exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the Commission), provide the Noteholder Representative the opportunity to object to any information pertaining to the Noteholder Representative and its plan of distribution that is contained therein and make the corrections reasonably requested by the Noteholder Representative with respect to such information prior to filing such registration statement or supplement or amendment thereto, and (ii) such number of copies of the intended method registration statement and the prospectus included therein and any supplements and amendments thereto as the Noteholder Representative may reasonably request in order to facilitate the public sale or other disposition of disposition, to the extent then known.Registrable Securities covered by such registration statement;
(bc) Upon receipt if applicable, use its reasonable commercial efforts to register or qualify the Registrable Securities covered by the registration statement contemplated by this Agreement under the securities or blue sky laws of any Demand Requestsuch jurisdictions as the Noteholder Representative or, in the case of an Underwritten Offering, the Company Managing Underwriter(s), shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holdersreasonably request; provided, however, that the Company shall Partnership will not provide be required to qualify generally to transact business in any Demand Notice jurisdiction where it is not then required to so qualify or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(d) promptly notify the Noteholder Representative of (i) the filing of any registration statement contemplated by this Agreement or any prospectus or prospectus supplement to be used in connection therewith, or any amendment or supplement thereto, and, with respect to such registration statement or any post-effective amendment thereto, when the same has become effective; and (ii) any written comments from the Commission with respect to any Non-Private Equity Holder who is filing referred to in clause (i) and any written request by the Commission for amendments or supplements to such registration statement or any prospectus or prospectus supplement thereto;
(e) immediately notify the Noteholder Representative of (i) the happening of any event as a result of which the prospectus or prospectus supplement contained in any registration statement contemplated by this Agreement, as then in effect, includes 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 an Informed Holder and shall not be obligated tomisleading in the light of the circumstances then existing; (ii) the issuance or threat of issuance by the Commission of any stop order suspending the effectiveness of any registration statement contemplated by this Agreement, but may use its discretion after consultation or the initiation of any proceedings for that purpose; or (iii) the receipt by the Partnership of any notification with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice respect to the Company within such period suspension of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion qualification of any Registrable Shares Securities for sale under the applicable securities or blue sky laws of any jurisdiction. Following the provision of such notice, the Partnership agrees to, as promptly as practicable, amend or supplement the prospectus or prospectus supplement or take other appropriate action so that the prospectus or prospectus supplement does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and to take such other action as is necessary to remove a stop order, suspension, threat thereof or proceedings related thereto. Following the provision of such notice, the Noteholder Representative shall forthwith discontinue disposition of the affected Registrable Securities until the Noteholder Representative’s receipt of the copies of the supplemented or amended prospectus or until the Noteholder Representative is advised in writing by the Partnership that the use of the prospectus may be resumed;
(f) subject to appropriate confidentiality obligations, promptly furnish to the Noteholder Representative copies of any and all transmittal letters or other correspondence with the Commission or any specified number other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) over an offering of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.Securities;
(cg) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 an Underwritten Offering, furnish to the underwriters an opinion of counsel for the Partnership and twenty (20) days in “cold comfort” letters signed by the case of a Registration Statement on Form S-3 (orindependent public accountants who have certified the Partnership’s financial statements included or incorporated by reference into the applicable registration statement, in each case, any successor formin such customary form as the underwriters may reasonably request;
(h) after receiving such Demand Request (make available to the “Required Filing Date”appropriate representatives of the Managing Underwriter(s) and the Noteholder Representative access to such information and the Partnership’s personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act;
(iii) use its reasonable best efforts cause all such Registrable Securities registered pursuant to cause such Registration Statement this Agreement to be declared effective listed on each securities exchange or nationally recognized quotation system on which similar securities issued by the SEC as promptly as reasonably practicable.Partnership are then listed;
(dj) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated enter into customary agreements and take such other actions as are reasonably requested by the Company)Noteholder Representative or the underwriters, providedif any, that in order to expedite or facilitate the registration or disposition of such selection shall be subject to Registrable Securities; and
(k) except as set forth herein, pay all Registration Expenses, without reimbursement by the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)Noteholder Representative, the Company shall include in such Demand Offering Initial Purchasers or the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Noteholders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tetra Technologies Inc), Registration Rights Agreement (CSI Compressco LP)
General Procedures. (a) Each Demand Request shall specify: (i) If at any time on or after the number Effective Time the Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holder or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), if any, and the Holder, and the Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holder or the legal counsel for any the Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Holder; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to: (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holder (in light of its intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holder to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 advise the Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any Prospectus forming a part of such registration statement has been filed (provided that any such notice may be made by the SEC issuance of a press release including such information);
3.1.9 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is or will become available on the Commission’s ▇▇▇▇▇ system;
3.1.10 notify the Holder at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as promptly a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.11 permit a representative of the Holder, the Underwriter(s), if any, and any attorney or accountant retained by the Holder or such Underwriter(s) to participate, at each such Person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter(s), attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriter(s) enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter(s) may reasonably request, and reasonably satisfactory the Holder and such managing Underwriter;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, in the event of an Underwritten Offering, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Underwriter(s), if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Underwriter(s) may reasonably request and as are customarily included in such opinions and negative assurance letters;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s) of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 if a Registration, which consent shall not be unreasonably withheld. If such firm or firms advise including an Underwritten Offering, involves the Registration of Registrable Securities involving gross proceeds in excess of $10,000,000, use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter(s) in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolder, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Li-Cycle Holdings Corp.), Note Purchase Agreement (Li-Cycle Holdings Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) If the number Company is required to effect the Registration of Registrable Shares proposed Securities pursuant to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestthis Agreement, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall shall:
3.1.1 prepare and file with the Commission within the time frame required by Section 2.1.1 (ito the extent applicable) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective, until all Registrable Securities covered by such Registration Statement have been sold or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder with Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 at least five days prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto (or such shorter period of time as promptly may be (a) necessary in order to comply with the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish without charge to the Underwriters, if any, and each Holder of Registrable Securities included in such Registration, and each such Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and each Holder of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably practicable.request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering Analysis and Retrieval System (“▇▇▇▇▇”) and provided further, the Company shall provide each Holder and their legal counsel with a reasonable opportunity to review such documents and comment thereon, and the Company shall consider in good faith any comments provided by such Holder or their legal counsel;
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (di) The register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as any Holder of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence reasonably satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 use its commercially reasonable efforts to cause all Registrable Securities included in any Registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 [reserved]
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 in the event of an Underwritten Offering, a Block Trade, or sale by a broker, placement agent or sales agent pursuant to such Registration, in each of the cases to the extent customary for a transaction of its type, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included participating Holders), the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriters to participate, at each such person’s or entity’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Registration Statement, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives, Underwriters or financial institutions enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a broker, placement agent or sales agent pursuant to such Registration in customary form and covering such matters of the type customarily covered by “comfort” letters for a transaction of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade or sale by a broker, placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agents or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, broker, placement agents, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect), and which consent shall not requirement will be unreasonably withheld. If such firm or firms advise deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Majority Requesting Holders that Exchange Act and otherwise complies with Rule 158 under the inclusion Securities Act;
3.1.15 if the Registration involves the Registration of all Registrable Shares and Synthetic Primary Shares requested Securities involving gross proceeds in excess of $50,000,000, use its commercially reasonable efforts to be included in the Demand Offering would materially and adversely affect the price or success make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”)road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration. Notwithstanding the foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if such Demand Underwriter, broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Requestregistration as an Underwriter, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement broker, sales agent or joinderplacement agent, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Scilex Holding Company/De), Registration Rights Agreement (American Acquisition Opportunity Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time frame required by Section 2.1.1, a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.11 permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders),, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Prospectus, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 if the Registration involves the Registration of Registrable Securities in an Underwritten Offering in excess of the Minimum Amount, which consent shall not be unreasonably withheld. If such firm or firms advise use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hyzon Motors Inc.), Business Combination Agreement (Decarbonization Plus Acquisition Corp)
General Procedures. (a) Each Demand Request The Company shall specify: (i) use its commercially reasonable efforts to effect the number Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto the immediately preceding paragraph.Company shall, as expeditiously as practicable:
(ca) Subject subject to Section 2.2.32.1, if a Shelf Registration Statement has not been declared effective by prepare and file with the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Commission a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective pursuant to the terms of this Agreement until all of such Registrable Securities have been disposed of (if earlier);
(b) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all of such Registrable Securities have been disposed of (if earlier) in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c) prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and to one legal counsel selected by the Holders, copies of such Registration Statement as promptly proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as reasonably practicable.the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel selected by such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
(d) The prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of a majority Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Shares Securities included in such Registration Statement to consummate the Demand Request disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(the “Majority Requesting Holders”e) shall have the right use its commercially reasonable efforts to select the investment banking firm cause all such Registrable Securities to be listed on each securities exchange or firms to manage the Demand Offering (automated quotation system on which firms shall be represented by counsel designated similar securities issued by the Company are then listed;
(f) provide a transfer agent and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
(g) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(h) at least five days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
(i) notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
(j) permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
(k) obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request;
(l) on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated as of such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as are customarily included in such opinions and negative assurance letters;
(m) in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, on terms agreed to by the Company with the managing Underwriter of such offering;
(n) make available to its security holders, as soon as reasonably practicable, an earnings statement (which need not be audited) covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
(o) if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $30,000,000, which consent shall not be unreasonably withheld. If such firm or firms advise use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include Underwriter in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable Underwritten Offering; and
(plus any additional Registrable Shares acquired thereafterp) andotherwise, in good faith, take such customary actions necessary to effect the case registration of the Synthetic Primary Shares, the number of such Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Securities contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Alta Equipment Group Inc.), Merger Agreement (B. Riley Principal Merger Corp.)
General Procedures. In connection with any Underwritten Offering contemplated by Section 2.03(a), the underwriting agreement into which each Selling Holder and the Company shall enter shall contain such representations, covenants, indemnities (asubject to Section 2.08) Each Demand Request and other rights and obligations as are customary in Underwritten Offerings of securities by the Company. No Selling Holder shall specify: be required to make any representations or warranties to, or agreements with, the Company or the Underwriters other than representations, warranties or agreements regarding (i) the number such Holder’s ownership of its Registrable Shares proposed Securities to be sold and or transferred, (ii) the such Selling Holder’s authority to enter into such underwriting agreement and to sell or transfer such securities, (iii) its intended method of dispositiondistribution and (iv) any other such matters or representations pertaining to compliance with securities laws as may be reasonably requested. If any Selling Holder (which, for the avoidance of doubt, shall include the Initiating Holder (as defined below)) disapproves of the terms of an Underwritten Offering contemplated by this Section 2.03, such Selling Holder may elect to withdraw therefrom by notice to the extent then known.
(b) Upon receipt of any Demand Request, Company and the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed HoldersManaging Underwriter; provided, however, that such withdrawal must be made at least one Business Day prior to the Company shall not provide any Demand Notice time of pricing of such Underwritten Offering to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated toeffective. If, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Datesentence, the Company entire Demand Registration Request is revoked, then, at the option of the Holder or Holders who revoke such request, Holder or Holders shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by reimburse the Company for all of its own account (reasonable and documented incremental out-of-pocket expenses incurred in the “Synthetic Primary Shares”) preparation, filing and use processing of the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant Registration Statement or prospectus supplement with respect to such Standing Instructions and pay related fees and requested Underwritten Offering, which incremental out-of-pocket expenses. In such event, such Standing Instructions Holders for the avoidance of doubt, shall not be included in a Demand Offering for a “bought deal” include overhead expenses and which requested Underwritten Offering, whether or an “overnight” Public Offering. In additionnot completed, no Non-Private Equity will not decrease the number of Underwritten Offerings the Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right and option to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of request under this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Section 2.03.
Appears in 2 contracts
Sources: Registration Rights Agreement (Blackstone Holdings III L.P.), Registration Rights Agreement (Blackstone Holdings III L.P.)
General Procedures. (a) Each Demand Request shall specify: (i) the number In connection with any Shelf and/or Shelf Takedown and/or other disposition of Registrable Shares proposed Securities pursuant to be sold and a registration statement contemplated herein (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestapplicable), the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (i) as may be reasonably requested by (x) the Sponsor or (y) any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or (z) any Underwriter of Registrable Securities or (ii) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders' legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System ("E▇▇▇▇");
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Clause 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Clause 3.4;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent pursuant to such Registration, in each of the following cases to the extent customary for a transaction of its type, permit a representative of the Holders, the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person's or entity's own expense, in the preparation of the Registration Statement, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a "cold comfort" letter from the Company's independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration (subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by the Company's independent registered public accountants and the Company's counsel) in customary form and covering such matters of the type customarily covered by "cold comfort" letters for a transaction of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority- in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion and negative assurance letter, each dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agents or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion or negative assurance letter, as applicable, is being given as the participating Holders, broker, placement agent, sales agent or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, as applicable;
3.1.13 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the broker, placement agent or sales agent of such offering or sale;
3.1.14 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company's first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.15 with respect to an Underwritten Offering pursuant to Clause 2.1.4, which consent shall not be unreasonably withheld. If such firm or firms advise use its commercially reasonable efforts to make available senior executives of the Company to participate in customary "road show" presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if such Demand Underwriter, broker, sales agent or placement agent has not then been selected with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Requestregistration as an Underwriter, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement broker, sales agent or joinderplacement agent, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) the number In connection with any Shelf and/or Shelf Takedown and/or other disposition of Registrable Shares proposed Securities pursuant to be sold and a registration statement contemplated herein (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestapplicable), the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (i) as may be reasonably requested by (x) the Sponsor or (y) any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or (z) any Underwriter of Registrable Securities or (ii) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”);
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Clause 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Clause 3.4;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent pursuant to such Registration, in each of the following cases to the extent customary for a transaction of its type, permit a representative of the Holders, the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration (subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel) in customary form and covering such matters of the type customarily covered by “cold comfort” letters for a transaction of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority- in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion and negative assurance letter, each dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agents or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion or negative assurance letter, as applicable, is being given as the participating Holders, broker, placement agent, sales agent or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, as applicable;
3.1.13 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the broker, placement agent or sales agent of such offering or sale;
3.1.14 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.15 with respect to an Underwritten Offering pursuant to Clause 2.1.4, which consent shall not be unreasonably withheld. If such firm or firms advise use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if such Demand Underwriter, broker, sales agent or placement agent has not then been selected with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Requestregistration as an Underwriter, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement broker, sales agent or joinderplacement agent, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its best efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission as soon as practicable after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4;
3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable., an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering;
3.1.17 until the date the Registrable Securities may be sold under Rule 144, in order to permit the Holders to conduct sales (dincluding continuous offerings based on market prices and block trades) The Holders of a majority of the Registrable Shares included in Securities offered pursuant to the Demand Request Registration Statement (the “Majority Requesting HoldersBrokerage Trades”) shall have the right to select the through [two] or more reputable investment banking firm banks or firms to manage the Demand Offering (which firms shall be represented by counsel other reputable broker-dealers designated by the CompanyCompany (“Financial Counterparties”): (a) enter into an equity distribution agreement or sales agreement with the Financial Counterparties, in customary form, which shall include, among other provisions, indemnities similar to those in Article III, and representations, covenants and other indemnities and rights and obligations as are customary in equity distribution agreements for issuer ATM programs (including an obligation of the Company to reimburse the Financial Counterparties for the expense of one counsel to the Financial Counterparties), provided(b) notify the Holders of the identities of the Financial Counterparties, that such selection shall be subject (c) to the consent of extent requested by a Financial Counterparty in order to engage in Brokerage Trades, the Company shall allow the Financial Counterparties to conduct customary “underwriter’s due diligence” with respect to the Company, which consent shall not may be unreasonably withheld. If such firm or firms advise on a periodic “bring down” basis when the Company files periodic or current reports or there is material news about the Company, including (1) by using commercially reasonable efforts to cause its independent certified public accountants to provide to the Financial Counterparties a “cold comfort” letter in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Majority Requesting Holders that Financial Counterparties, (2) by using commercially reasonable efforts to cause its outside counsel to the inclusion of all Registrable Shares Company to deliver an opinion in form, scope and Synthetic Primary Shares requested substance as is customarily given in an underwritten public offering, including a standard “10b-5” letter for such offering, addressed to be included in the Demand Offering would materially Financial Counterparties, and adversely affect (3) by providing a standard officer’s certificate from the price chief executive officer or success chief financial officer, or other officers serving such functions, of the offering Company addressed to the Financial Counterparties and (a “Material Adverse Effect”), d) shall take such other reasonable action as requested by the Company shall include Financial Counterparties in such Demand Offering order to expedite or facilitate the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Brokerage Trades; and
3.1.18 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Beard Energy Transition Acquisition Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect the Registration of Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as practicable:
(a) subject to Section 2.1, prepare and file with the Commission a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective pursuant to the terms of this Agreement until all of such Registrable Securities have been disposed of (if earlier);
(b) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all of such Registrable Securities have been disposed of (if earlier) in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c) prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and to one legal counsel selected by the Holders, copies of such Registration Statement as promptly proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as reasonably practicable.the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel selected by such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
(d) The prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of a majority Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Shares Securities included in such Registration Statement to consummate the Demand Request disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(the “Majority Requesting Holders”e) shall have the right use its commercially reasonable efforts to select the investment banking firm cause all such Registrable Securities to be listed on each securities exchange or firms to manage the Demand Offering (automated quotation system on which firms shall be represented by counsel designated similar securities issued by the Company are then listed;
(f) provide a transfer agent and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
(g) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(h) at least five days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
(i) notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
(j) permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
(k) obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request;
(l) on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated as of such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as are customarily included in such opinions and negative assurance letters;
(m) in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, on terms agreed to by the Company with the managing Underwriter of such offering;
(n) make available to its security holders, as soon as reasonably practicable, an earnings statement (which need not be audited) covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
(o) if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $20,000,000, which consent shall not be unreasonably withheld. If such firm or firms advise use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include Underwriter in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable Underwritten Offering; and
(plus any additional Registrable Shares acquired thereafterp) andotherwise, in good faith, take such customary actions necessary to effect the case registration of the Synthetic Primary Shares, the number of such Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Securities contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Atlas Technical Consultants, Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) In connection with effecting any Underwritten Offering, Block Trade, and/or Other Coordinated Offering, subject to applicable law and any regulations promulgated by any securities exchange on which the number Company’s equity securities are then listed, each as interpreted by the Company with the advice of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestits counsel, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (a) as may be declared effective reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement, any Underwriter, or (b) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as promptly as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters, or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (the “Majority Requesting Holders”) shall have the right subject to select the investment banking firm such Financial Counterparty providing such certification or firms to manage the Demand Offering (which firms shall be represented by counsel designated representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), providedin customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter or other similar type of sales agent or placement agent may reasonably request, that and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such selection shall be subject Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the consent Financial Counterparty, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such Financial Counterparty or Underwriter;
3.1.13 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 with respect to an Underwritten Offering pursuant to subsection 2.1.5, which consent shall not be unreasonably withheld. If such firm or firms advise use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Zoomcar Holdings, Inc.)
General Procedures. (a) Each Demand Request NewCo shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto NewCo shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time frame required by Section 2.1.1, a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a Subsequent Shelf Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by NewCo or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any Registration of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of NewCo and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that NewCo shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by NewCo are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that NewCo will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.11 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right Prospectus, and cause NewCo’s officers, directors and employees to select supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company)Registration; provided, providedhowever, that such selection shall be representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to NewCo, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from NewCo’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (subject to such Financial Counterparty providing such certification or representation reasonably requested by the consent NewCo’s independent registered public accountants and NewCo’s counsel), in customary form and covering such matters of the Companytype customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing NewCo for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which consent shall not such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which NewCo has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to NewCo;
3.1.15 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or Financial Counterparty of such offering or sale;
3.1.16 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of NewCo’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission), and which requirement will be unreasonably withheld. If such firm or firms advise deemed to be satisfied if the Company timely files complete and the Majority Requesting Holders that the inclusion of all Registrable Shares accurate information on Forms 20-F, 6-K, 10-K, 10-Q and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder8-K, as applicable (plus applicable, under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any additional Registrable Shares acquired thereafter) successor rule thereto;
3.1.17 use its reasonable efforts to make available appropriate senior executives of NewCo to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.18 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Business Combination Agreement (First Reserve Sustainable Growth Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall:
3.1.1 prepare and file with the Commission as soon as is reasonably practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1 and remain effective until all Registrable Securities covered by such Registration Statement have ceased to be declared Registrable Securities (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Holders or any Underwriter of Registrable Securities or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this Section 3.1.3 that is available on the Commission’s Electronic Data Gathering, Analysis and Retrieval (“E▇▇▇▇”) System;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period (or such shorter period of time as may be necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable), furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein); provided that the Company will not have any obligation to provide any document pursuant to this Section 3.1.8 that is available on the Commission’s E▇▇▇▇ System;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 in the event of an Underwritten Offering, a Block Trade or an Other Coordinated Offering, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such Person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Prospectus, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters agree to confidentiality arrangements in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering or Other Coordinated Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in connection with an Underwritten Offering or Other Coordinated Offering, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering or Other Coordinated Offering, enter into and perform its obligations under an underwriting agreement or similar agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 with respect to an Underwritten Shelf Takedown pursuant to Section 2.1.4 involving gross proceeds in excess of the Minimum Takedown Threshold, which consent shall not be unreasonably withheld. If such firm or firms advise use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Shelf Takedown; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter if such Demand Underwriter has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)an Underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Stardust Power Inc.)
General Procedures. In connection with any Underwritten Offering contemplated by Section 2.03(a), the underwriting agreement into which each Selling Holder and the Company shall enter shall contain such representations, covenants, indemnities (asubject to Section 2.08) Each Demand Request and other rights and obligations as are customary in Underwritten Offerings of securities by the Company. No Selling Holder shall specify: (i) be required to make any representations or warranties to, or agreements with, the number of Registrable Shares proposed Company or the Underwriters other than representations, warranties or agreements regarding such Selling Holder’s authority to be sold enter into such underwriting agreement and (ii) to sell, and its ownership of, the securities being registered on its behalf, its intended method of dispositiondistribution and any other representation required by law. If any Selling Holder disapproves of the terms of an Underwritten Offering contemplated by this Section 2.03, such Selling Holder may elect to withdraw therefrom by notice to the extent then known.
(b) Upon receipt of any Demand Request, Company and the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed HoldersManaging Underwriter; provided, however, that such withdrawal must be made at least one Business Day prior to the time of pricing of such Underwritten Offering to be effective; provided, further, that in the event the Managing Underwriter or Underwriters of any proposed Underwritten Offering advise the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery total amount of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder Registrable Securities that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect Holders intend to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition offering exceeds the inclusion of any Registrable Shares or any specified number of Registrable Shares that can be sold in such Demand Offering offering without being likely to have an adverse effect on the price to price, timing or distribution of the public per share Common Unit Registrable Securities offered or the market for shares of Class A Company Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand OfferingStock, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares amount of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Unit Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares Securities requested to be included in such Underwritten Offering by the Demand Holder that initiated such Underwritten Offering would materially and adversely affect pursuant to Section 2.03(a) (the price “Initiating Holder”) is reduced by 50% or success of the offering (a “Material Adverse Effect”)more, the Initiating Holder will have the right to withdraw from such Underwritten Offering by delivering notice to the Company shall include at least one Business Day prior to the time of pricing of such Underwritten Offering, in which case the Company will have no obligation to proceed with such Demand Underwritten Offering and such Underwritten Offering, whether or not completed, will not decrease the number of Registrable Shares Underwritten Offerings the Initiating Holder shall have the right and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among option to request under this Section 2.03. No such withdrawal or abandonment shall affect the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Company’s obligation to pay Registration Expenses.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) If at any time on or after the number date hereof the Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall:
3.1.1 prepare and file with the Commission a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by any Holder or any Underwriter of Registrable Securities or as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus and either (i) any Underwriter overallotment option has terminated by its terms or (ii) the Underwriters have advised the Company that they will not exercise such option or any remaining portion thereof;
3.1.3 furnish without charge to the Underwriters, if any, and each Holder of Registrable Securities included in such Registration, or such Holders’ legal counsel, copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus), and each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), and such other documents as promptly as the Underwriters and each Holder of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably practicable.
(d) The Holders of a majority request in order to facilitate the disposition of the Registrable Shares Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as any Holder of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 use commercially reasonable efforts to cause all such Registrable Securities to be listed on the primary securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or promptly upon filing, with respect to any document that is to be incorporated by reference into such Registration Statement or Prospectus), furnish a copy thereof to each seller of such Registrable Securities and its counsel, including, without limitation, providing copies promptly upon receipt of any comment letters received with respect to any such Registration Statement or Prospectus. The Company shall not include the name of any Holder or any information regarding any Holder in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent of such Holder and providing each such Holder or its counsel a reasonable amount of time to review and comment on such applicable document, which comments the Company shall include unless contrary to applicable law or the Company reasonably expects that so doing would cause the Prospectus to contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
3.1.9 in the event of an Underwritten Offering, obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Holders included in such Registration or sale, a comfort letter from the Company’s independent certified public accountants or independent auditors (and, if necessary, any other independent certified public accountants or independent auditors of any subsidiary of the Company or any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Demand Request (Registration Statement) in customary form and covering such matters of the “Majority Requesting Holders”type customarily covered by comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
3.1.10 in the event of an Underwritten Offering, permit the participating Holders to rely on any opinion(s) shall have of counsel representing the right Company for the purposes of such Registration issued to select the investment banking firm or firms managing Underwriter of such offering covering legal matters with respect to manage the Demand Offering (Registration;
3.1.11 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.12 furnish to the underwriters, if any, and to the Holders of the Registrable Securities covered by such Registration Statement, copies of all documents prepared to be filed, which firms shall be represented by counsel designated by the Company), provided, that such selection documents shall be subject to the consent review of such underwriters and such Holders and their respective counsel, (y) subject to applicable law, make such changes in such documents concerning the Holders prior to the filing thereof as such Holders, or their counsel, may reasonably request;
3.1.13 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, and which consent shall not requirement will be unreasonably withheld. If such firm or firms advise deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Majority Requesting Holders that Exchange Act and otherwise complies with Rule 158 under the inclusion of all Registrable Shares and Synthetic Primary Shares requested Securities Act;
3.1.14 use its reasonable efforts to be included in the Demand Offering would materially and adversely affect the price or success make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”), road show” presentations that may be reasonably requested by the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwriter thereof; and
3.1.15 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Healthcare Royalty, Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) If the number Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto the immediately preceding paragraph.Company shall, as expeditiously as possible:
(ca) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by prepare and file with the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have ceased to be declared Registrable Securities;
(b) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Holders or any Underwriter of Registrable Securities or as promptly may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(c) prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably practicable.request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
(d) The prior to any public offering of Registrable Securities, but in any case no later than the effective date of the applicable Registration Statement, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request to keep such registration or qualification in effect for so long as such Registration Statement remains in effect and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company or otherwise and do any and all other acts and things that may be necessary or advisable, in each case, to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(e) cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
(f) provide a majority transfer agent and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
(g) promptly furnish to each seller of Registrable Securities covered by such Registration Statement such number of conformed copies of such Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the Prospectus contained in such Registration Statement (including each preliminary Prospectus and any summary Prospectus) and any other Prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such seller may reasonably request;
(h) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of any request by the Commission that the Company amend or supplement such Registration Statement or Prospectus or of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or Prospectus or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to amend or supplement such Registration Statement or Prospectus or prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued, as applicable;
(i) notify each Holder of Registrable Securities covered by such Registration Statement, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;
(j) at least five (5) business days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or the Exchange Act, as applicable), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
(k) notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event or the existence of any condition as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, or in the opinion of counsel for the Company it is necessary to supplement or amend such Prospectus to comply with law, and then to correct such Misstatement or include such information as is necessary to comply with law, in each case as set forth in Section 3.05 hereof;
(l) permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such Person’s own expense, in the preparation of any Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that, if requested by the Company, such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
(m) obtain a “comfort letter” (including a bring-down letter dated as of the date the Registrable Securities are delivered for sale pursuant to such Registration) from the Company’s independent registered public accountants in the event of an Underwritten Offering or Underwritten Shelf Takedown, in customary form and covering such matters of the type customarily covered by “comfort letters” as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders and the managing Underwriter;
(n) on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain (i) an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to the managing Underwriter and (ii) a customary opinion to the transfer agent reasonably satisfactory to the transfer agent for the removal of any restricted legends and the transfer of the Registrable Shares included Securities to be delivered for sale;
(o) in the Demand Request event of any Underwritten Offering or Underwritten Shelf Takedown, enter into and perform its obligations under an underwriting agreement or other agreement, in usual and customary form, with the managing Underwriter of such Underwritten Offering or Underwritten Shelf Takedown;
(p) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the “Majority Requesting Holders”Commission, and to make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) shall have months beginning with the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations thereunder, which consent shall not be unreasonably withheld. If such firm including Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
(q) with respect to an Underwritten Offering or Underwritten Shelf Takedown pursuant to Section 2.02, use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter(s) in any such Underwritten Offering; and
(r) otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that Holders, in connection with such Registration. Notwithstanding the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or other sales agent or placement agent if such Demand Underwriter or other sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or Other Coordinated Offering that is registered pursuant to a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Registration Statement.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) If at any time on or after the number Effective Time the Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to: (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 advise each Holder of Registrable Securities covered by such Registration Statement, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any Prospectus forming a part of such registration statement has been filed (provided that any such notice may be made by the SEC issuance of a press release including such information);
3.1.9 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is or will become available on the Commission’s ▇▇▇▇▇ system;
3.1.10 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as promptly a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.11 permit a representative of the Holders, the Underwriter(s), if any, and any attorney or accountant retained by such Holders or Underwriter(s) to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter(s), attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriter(s) enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter(s) may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders and such managing Underwriter;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, in the event of an Underwritten Offering, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Underwriter(s), if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Underwriter(s) may reasonably request and as are customarily included in such opinions and negative assurance letters;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s) of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 if a Registration, which consent shall not be unreasonably withheld. If such firm or firms advise including an Underwritten Offering, involves the Registration of Registrable Securities involving gross proceeds in excess of $10,000,000, use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter(s) in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Investor and Registration Rights Agreement (Li-Cycle Holdings Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time frame required by Section 2.1.1, a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its best efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject Business Combination a post-effective amendment to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20File No. 333-272810) days in previously filed with the case of Commission or a new Registration Statement on Form S-3 (or, in each case, any successor form) after receiving with respect to such Demand Request (the “Required Filing Date”) Registrable Securities and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1 and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s E▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriters to participate, at each such person’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent or Underwriters may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriters;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable., an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 use commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriters in any Underwritten Offering;
3.1.16 until the date the Registrable Securities may be sold under Rule 144, in order to permit the Holders to conduct sales (dincluding continuous offerings based on market prices and block trades) The Holders of a majority of the Registrable Shares included in Securities offered pursuant to the Demand Request Registration Statement (the “Majority Requesting HoldersBrokerage Trades”) shall have the right to select the through two or more reputable investment banking firm banks or firms to manage the Demand Offering (which firms shall be represented by counsel other reputable broker-dealers designated by the Company)Company (“Financial Counterparties”): (a) enter into an equity distribution agreement or sales agreement with the Financial Counterparties, providedin customary form, that such selection which shall be subject include, among other provisions, indemnities similar to those in Article IV, and representations, covenants and other indemnities and rights and obligations as are customary in equity distribution agreements for issuer ATM programs (including an obligation of the Company to reimburse the Financial Counterparties for the expense of one counsel to the consent Financial Counterparties); (b) notify the Holders of the identities of the Financial Counterparties; (c) to the extent requested by a Financial Counterparty in order to engage in Brokerage Trades, the Company shall allow the Financial Counterparties to conduct customary “underwriter’s due diligence” with respect to the Company, which consent shall not may be unreasonably withheld. If such firm or firms advise on a periodic “bring down” basis when the Company files periodic or current reports or there is material news about the Company, including (1) by using commercially reasonable efforts to cause its independent certified public accountants to provide to the Financial Counterparties a “cold comfort” letter in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Majority Requesting Holders that Financial Counterparties, (2) by using commercially reasonable efforts to cause its outside counsel to the inclusion of all Registrable Shares Company to deliver an opinion in form, scope and Synthetic Primary Shares requested substance as is customarily given in an underwritten public offering, including a standard “10b-5” letter for such offering, addressed to be included in the Demand Offering would materially Financial Counterparties, and adversely affect (3) by providing a standard officer’s certificate from the price chief executive officer or success chief financial officer, or other officers serving such functions, of the offering Company addressed to the Financial Counterparties; and (a “Material Adverse Effect”), d) shall take such other reasonable action as requested by the Company shall include Financial Counterparties in such Demand Offering order to expedite or facilitate the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Brokerage Trades; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Nabors Energy Transition Corp. II)
General Procedures. (a) Each Demand Request shall specify: (i) If at any time the number Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of dispositionSecurities, whether pursuant to the extent then known.
(b) Upon receipt filing of any Demand Requesta new Registration Statement or effecting an Underwritten Offering, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall, as expeditiously as possible:
3.1.1 prepare and file a Registration Statement with the Commission as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 with respect to such Registrable Securities and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold; provided that the Company shall not be declared required to file such Registration Statement until such time as it has received any necessary information from the Holders; provided, further, that no Holder shall be identified as an underwriter in any such Registration Statement without the prior written consent of such ▇▇▇▇▇▇.
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Holders or any Underwriter of Registrable Securities or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of a majority Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Shares Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Demand Request (Registration Statement to be registered with or approved by such other Governmental Authorities as may be necessary by virtue of the “Majority Requesting Holders”) business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall have not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the right Company are then listed;
3.1.6 [reserved];
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to select prevent the investment banking firm issuance of any stop order or firms to manage obtain its withdrawal if such stop order should be issued;
3.1.8 advise each Holder of Registrable Securities covered by such Registration Statement, promptly after the Demand Offering Company receives notice thereof, of the time when such Registration Statement has been declared effective (which firms shall may be represented satisfied by counsel designated the issuance of a press release by the Company);
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders, the Underwriter(s), if any, and any attorney or accountant retained by such Holders or Underwriter(s) to participate, at each such Person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter(s), attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriter(s) enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter(s) may reasonably request;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Underwriter(s), if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Underwriter(s) may reasonably request and as are customarily included in such opinions and negative assurance letters; provided, however, that counsel for the Company shall not be required to provide any opinions with respect to any Holder;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s) of such offering; provided that such underwriting agreement shall not require the Company or any of its directors and officers to be locked up for any period of time following the date of the underwriting agreement;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise ’s first full calendar quarter after the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success effective date of the offering (a “Material Adverse Effect”), Registration Statement which satisfies the Company shall include in such Demand Offering the number provisions of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis Section 11(a) of the number of Registrable Shares owned Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by each such Holder as of the date of this Agreement or joinderCommission);
3.1.15 in connection with an Underwritten Offering, as applicable cause its senior management, officers, employees and independent public accountants (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Sharesindependent public accountants, subject to any applicable accounting guidance regarding their participation in the number offering or the due diligence process) to participate in, make themselves available, supply such information as may reasonably be requested and to otherwise facilitate and cooperate with the preparation of Registrable Shares owned the Registration Statement and Prospectus and any amendments or supplements thereto (including participating in due diligence sessions) taking into account the Company’s reasonable business needs; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
General Procedures. The procedures to be followed by the Company and each Holder electing to sell Registrable Securities in a Registration Statement pursuant to this Agreement, and the respective rights and obligations of the Company and such Holders, with respect to the preparation, filing and effectiveness of such Registration Statement pursuant to a Registration Statement, as applicable, are as follows:
(a) Each Demand Request In connection with a Shelf Registration, the Company will, at least three Business Days prior to the anticipated filing of the Registration Statement and any related Prospectus or any amendment or supplement thereto (other than any filing made under the Exchange Act that is incorporated by reference into the Registration Statement) (for purposes of this subsection, supplements and amendments shall specify: not be deemed to include any amendments and supplements that do not materially alter the previous disclosure or do nothing more than name Holders and provide information with respect thereto), (i) the number furnish to such Holders and representatives of Registrable Shares proposed such Holders copies of all such documents prior to be sold filing and (ii) use commercially reasonable efforts to make any changes reasonably requested by the intended method of disposition, Holders prior to the extent then knownfiling of the Registration Statement.
(b) Upon receipt of any Demand RequestThe Company will use commercially reasonable efforts to, the Company shall as promptly (but in any event within the shorter of as reasonably practicable, (i) five (5) days prepare and (ii) file with the number of days from Commission such amendments, including post-effective amendments, and supplements to each Registration Statement and the Demand Request Prospectus used in connection therewith as may be necessary under applicable law to keep such Registration Statement continuously effective with respect to the date disposition of such Demand Offering) give written notice (all Registrable Securities covered thereby for the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders Shelf Period and, subject to the provisolimitations contained in this Agreement, prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Informed of the Registrable Securities held by the Holders; provided(ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement and, howeveras so supplemented or amended, the Company shall not provide any Demand Notice to be filed pursuant to Rule 424; and (iii) respond to any Non-Private Equity Holder who is not an Informed Holder comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably practicable, provide such Holders true and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery complete copies of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder all correspondence from and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within Commission relating to such period of time specified by the Company in Registration Statement that pertains to such Demand Notice (Holders as selling shareholders but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary comments that would result in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant disclosure to such Standing Instructions Holders of material and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Nonnon-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless public information concerning the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraphCompany.
(c) Subject The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to Section 2.2.3, if a Shelf the Registration Statement has not been declared effective and the disposition of all Registrable Securities covered by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicableStatement.
(d) The Company will notify such Holders who are included in a Registration Statement as promptly as reasonably practicable: (i) (1) when a Prospectus or any prospectus supplement or post- effective amendment to a Registration Statement in which such Holder is included has been filed; (2) when the Commission notifies the Company whether there will be a “review” of a majority the applicable Registration Statement and when the Commission comments in writing on such Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each of such Holders that pertain to such Holders as selling shareholders); and (3) with respect to each applicable Registration Statement or any post-effective amendment thereto, when the same has been declared effective; (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to such Registration Statement or Prospectus or for additional information that pertains to such Holders as sellers of Registrable Securities; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement covering any or all of the Registrable Shares included Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence (but not the details) of any event or passage of time that makes 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 Demand Request (case of such Registration Statement or the “Majority Requesting Holders”) shall have Prospectus, as the right case may be, it will not contain any untrue statement of a material fact or omit to select state any material fact required to be stated therein or necessary to make the investment banking firm statements therein not misleading, in the case of such Registration Statement, or firms include any untrue statement of a material fact or omit to manage state any material fact necessary in order to make the Demand Offering (which firms shall be represented by counsel designated by statements therein, in the Company), provided, that such selection shall be subject to the consent light of the Companycircumstances under which they were made, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) andmisleading, in the case of the Synthetic Primary SharesProspectus; provided that no notice by the Company shall be required pursuant to this clause (v) in the event that the Company either promptly files a prospectus supplement to update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Registration Statement, which, in either case, contains the requisite information that results in such Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in the case of such Registration Statement, or including any untrue statement of a material fact or omitting to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the case of the Prospectus.
(e) The Company will use commercially reasonable efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as promptly as reasonably practicable, or if any such order or suspension is made effective during any Blackout Period (as hereinafter defined) or Suspension Period (as hereinafter defined), as promptly as reasonably practicable after such Blackout Period or Suspension Period ends.
(f) During the Shelf Period, the number Company will furnish to each such Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Holder (including those incorporated by reference) as promptly as reasonably practical after the filing of such documents with the Commission; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system.
(g) The Company will as promptly as reasonably practical deliver to each Holder, without charge, as many copies of each Prospectus (including each form of prospectus) authorized by the Company for use and each amendment or supplement thereto as such Holder may reasonably request during the Shelf Period. Subject to the terms of this Agreement, the Company consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Upon the occurrence of any event contemplated by Section 3(d)(v), as promptly as reasonably practicable, the Company will prepare a supplement or amendment, including a post-effective amendment, if required by applicable law, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, nor will any Prospectus include any untrue statement of a material fact or omit to state any material face necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) Each Holder agrees to furnish to the Company any other information regarding the Holder and the distribution of such securities as the Company reasonably determines is required to be included in any Registration Statement or any Prospectus.
(j) Notwithstanding any other provision of this Agreement, the Company shall not be required to file a Registration Statement (or any amendment thereto) (or, if the Company has filed a Shelf Registration Statement and has included Registrable Securities therein, the Company shall be entitled to suspend the offer and sale of Registrable Shares owned Securities pursuant to such Registration Statement) for a period of up to 60 days if it determines that (i) a postponement is in the best interest of the Company and its shareholders generally due to a pending transaction or event involving the Company or any of its subsidiaries (including a pending securities offering by the Standing Instructions Holders Company), (ii) such registration would render the Company unable to comply with applicable securities laws or (iii) such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential (any such period, a “Blackout Period”); provided that in no event shall any Blackout Period, together with any Suspension Period, exceed an aggregate of 90 days in any consecutive 12-month period. Each Holder agrees that the receipt of any notice pursuant to this Section 3(j) does not constitute material non-public information, but nevertheless shall be kept confidential and not be disclosed without the prior written consent of the date Company until such time as the information contained therein is or becomes available to the public generally, other than as a result of disclosure by the Holder in breach of the terms of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Agreement.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) In connection with effecting any Underwritten Offering, Block Trade, and/or Other Coordinated Offering, subject to applicable law and any regulations promulgated by any securities exchange on which the number Company’s equity securities are then listed, each as interpreted by the Company with the advice of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestits counsel, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, security holders or partners), and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Merger a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (a) as may be declared effective reasonably requested by any Holder that holds at least five-percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter, or (b) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as promptly as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s EDGAR system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s EDGAR system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters, or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (the “Majority Requesting Holders”) shall have the right subject to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated such Financial Counterparty providing such certifications and/or representations reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), providedin customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter or other similar type of sales agent or placement agent may reasonably request;
3.1.12 in the event of an Underwritten Offering, that a Block Trade, an Other Coordinated Offering or sale by an Underwriter pursuant to such selection shall be subject Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the consent participating Underwriter covering such legal matters with respect to the Registration in respect of which such opinion and negative assurance letter is being given as the participating Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Underwriter;
3.1.13 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by an Underwriter pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Underwriter in order to engage in such offering, allow the Underwriter to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 with respect to an Underwritten Offering pursuant to subsection 2.1.5 use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
Sources: Merger Agreement (Nxu, Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time period required by subsection 2.1.1, a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 notify the Holders whose Registrable Securities are included in a Registration Statement promptly in all events within five (5) Business Days of the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post- effective amendment to such Registration Statement becomes effective; and (iii) any request by the Commission for any amendment or supplement to such Registration Statement or any Prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such Prospectus will not contain a Misstatement, and promptly make available to the Holders whose Registrable Securities are included in such Registration Statement any such supplement or amendment;
3.1.5 prior to any Registration of Registrable Securities, use its best efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.6 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.7 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.8 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.9 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.10 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.11 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.12 permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriters to participate, at each such person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Prospectus, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent of the Company, which consent shall not be unreasonably withheld. If prior to the release or disclosure of any such firm or firms advise information; and provided further, the Company and may not include the Majority Requesting Holders name of any Holder or Underwriter or any information regarding any Holder or Underwriter in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that the inclusion of all Registrable Shares and Synthetic Primary Shares requested is to be included in incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the Demand Offering would materially prior written consent of such Holder or Underwriter and adversely affect the price providing each such Holder or success Underwriter a reasonable amount of the offering (a “Material Adverse Effect”)time to review and comment on such applicable document, which comments the Company shall include unless contrary to applicable law;
3.1.13 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.14 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such Demand Offering opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.15 in the number event of Registrable Shares any Underwritten Offering, enter into and Synthetic Primary Shares perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.16 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which can be so sold without causing a Material Adverse Effect pro rata among satisfies the Holders who delivered provisions of Section 11(a) of the Demand Request, Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Other Requesting Persons and Commission);
3.1.17 use its reasonable efforts to make available senior executives of the Company on to participate in customary “road show” presentations that may be reasonably requested by the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus Underwriter in any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.18 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
General Procedures. (a) Each Demand Request The parties acknowledge and agree that the transactions contemplated by this Agreement shall specify: (i) be consummated following the number of Registrable Shares proposed Principal Closing by referring the Customers from Sellers to be sold Purchaser and, more particularly, by transitioning and (ii) redirecting the intended method of dispositiontransaction flows related to each Customer, to the extent then known.
(b) Upon receipt of any Demand Requestrelated to the Business, from Sellers' information systems to Purchaser's information systems. Prior to the Principal Closing, the Company Parties shall promptly (but use their respective reasonable best efforts to cooperate with and assist each other in any event within preparing for such transfer of Customers, including without limitation by introducing the shorter of (i) five (5) days and (ii) the number of days from the Demand Request Customers to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration StatementPurchaser; provided that nothing in this Agreement or any of the delivery Related Agreements shall require Purchaser to make any such efforts with respect to Excluded Accounts. The actual transfer of such Demand Notice will not delay Customers (and the proposed Demand Offeringaccompanying hire by Purchaser of the Business Employees pursuant to Section 5.5) shall commence with the Principal Closing. Each other Private Equity Holder The entire process of transitioning and Informed Holder that receives a Demand Notice shall have redirecting Customers from Sellers to Purchaser, including the right, exercisable by written notice preparatory measures taken prior to the Company within such period Principal Closing and the actual transfer of time specified Customers following the Principal Closing (accompanied by the Company in such Demand Notice (but not to exceed five (5hire by Purchaser of Business Employees) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless referred to as the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to "Conversion." The Conversion shall be included accomplished in accordance with the terms of process, guidelines, policies and procedures set forth in SCHEDULE 5.4 (the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective "Conversion Protocols"). The Conversion Protocols shall be updated by the SECparties from time to time (including following Closings if the Parties deem it appropriate) to set out any changes in the process, upon receipt of any Demand Requestguidelines, policies and procedures pursuant to which the Conversion shall take place. From and after the Principal Closing until the Sellers' Shutdown Date, the Company Sellers and Purchaser shall (i) use its their reasonable best efforts to file a Registration Statement implement the Conversion in accordance with the Conversion Protocols and as soon as reasonably practicable and further set forth below in no event later than sixty (60) days this Section 5.4. Notwithstanding any covenant in this Agreement to the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (orcontrary, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) Sellers shall have no obligation to (i) continue the right employment of any Business Employee not listed on ATTACHMENT A to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject SCHEDULE 5.4 to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders extent that the inclusion of all Registrable Shares and Synthetic Primary Shares requested Sellers can continue to be included in the Demand Offering would materially and adversely affect the price or success of the offering provide appropriate service levels (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder consistent with services levels provided as of the date of this Agreement or joinderAgreement) to Customers, as applicable (plus ii) pay any additional Registrable Shares acquired thereafter) and, Business Employees amounts in the case excess of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders those required under Employee Plans and Contracts in effect as of the date of this Agreement, (iii) hire additional employees for the Business, (iv) invest in any new technological infrastructure or new furnishings, fixtures or equipment, (v) engage in marketing efforts for new customers, or (vi) otherwise undertake any efforts for the expansion of the Business. During the Conversion, in each circumstance where Sellers are permitted under this Agreement to terminate the services (other than for cause) or joindersubstantially change the duties of any Business Employee, as applicable Sellers shall provide Purchaser with ten (plus any additional Registrable Shares acquired thereafter)10) days' written notice prior to such action in order to allow Purchaser to make use of such Business Employee if it so determines. In the event Purchaser notifies Sellers within such notice period of its determination to use such Business Employee, Purchaser, at its option, shall either promptly (i) offer to hire such Business Employee (and thereby include the relevant Business Employee on ATTACHMENT A to SCHEDULE 5.4) or (ii) lease all of his or her time under the Business Employee Leasing Agreement in accordance with the Conversion Protocols; PROVIDED THAT no such notice shall be required in connection with a termination pursuant to the Conversion Protocols.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Unionbancal Corp)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time period required by subsection 2.1.1, a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 notify the Holders whose Registrable Securities are included in a Registration Statement promptly in all events within five (5) Business Days of the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; and (iii) any request by the Commission for any amendment or supplement to such Registration Statement or any Prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such Prospectus will not contain a Misstatement, and promptly make available to the Holders whose Registrable Securities are included in such Registration Statement any such supplement or amendment;
3.1.5 prior to any Registration of Registrable Securities, use its best efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.6 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.7 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.8 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.9 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.10 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.11 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.12 permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriters to participate, at each such person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Prospectus, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent of the Company, which consent shall not be unreasonably withheld. If prior to the release or disclosure of any such firm or firms advise information; and provided further, the Company and may not include the Majority Requesting Holders name of any Holder or Underwriter or any information regarding any Holder or Underwriter in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that the inclusion of all Registrable Shares and Synthetic Primary Shares requested is to be included in incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the Demand Offering would materially prior written consent of such Holder or Underwriter and adversely affect the price providing each such Holder or success Underwriter a reasonable amount of the offering (a “Material Adverse Effect”)time to review and comment on such applicable document, which comments the Company shall include unless contrary to applicable law;
3.1.13 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.14 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such Demand Offering opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.15 in the number event of Registrable Shares any Underwritten Offering, enter into and Synthetic Primary Shares perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.16 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which can be so sold without causing a Material Adverse Effect pro rata among satisfies the Holders who delivered provisions of Section 11(a) of the Demand Request, Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Other Requesting Persons and Commission);
3.1.17 use its reasonable efforts to make available senior executives of the Company on to participate in customary “road show” presentations that may be reasonably requested by the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus Underwriter in any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.18 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of In connection with any Demand RequestRegistration Statement, the Company shall promptly (but use its reasonable best efforts to effect such Registration Statement to permit the sale of the Shares included therein in any event within accordance with the shorter plan of (i) five (5) days distribution thereof, and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, pursuant thereto the Company shall not provide any Demand Notice to any Non-Private Equity Holder who shall, as expeditiously as is not an Informed Holder possible:
3.1.1 Prepare and shall not be obligated to, but may use its discretion after consultation file with the Private Equity Holders requesting Commission such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3this Agreement, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing and to remain effective, and available for use, until all such Shares have either been sold or may be declared sold without restriction pursuant to Rule 144;
3.1.2 Prepare and file with the Commission such amendments and post-effective amendments to such Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Holders or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or the rules and regulations promulgated thereunder to keep such Registration Statement effective, and available for use, until all such Shares have either been sold or may be sold without restriction pursuant to Rule 144.
3.1.3 To the extent required by applicable law, use its reasonable best efforts to (a) register or qualify such Shares under the securities or “blue sky” laws of such jurisdictions in the United States as the Holders of such Shares may reasonably request, (b) take such action as is necessary to cause such Shares to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and (c) do any and all other acts and things that may be necessary or advisable to enable the Holders of such Shares to consummate the disposition of such Shares in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action which would subject it to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.4 Cause all such Shares to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.5 Provide a transfer agent or warrant agent, as applicable, and registrar for all such Shares no later than the effective date of such Registration Statement;
3.1.6 Advise each Holder of such Shares, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.7 At least five (5) days prior to the filing of such Registration Statement or any Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable), furnish a copy thereof to each Holder of such Shares (excluding any exhibits thereto and any filing made under the Exchange Act, whether incorporated by reference therein or made a part thereof by amendment or supplement);
3.1.8 Notify the Holders of such Shares, at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which such Prospectus, as then in effect, includes a Misstatement, and promptly use its reasonable best efforts to correct such Misstatement as set forth in Section 3.3;
3.1.9 Make available to its security holders, as soon as reasonably practicable.
(d) The Holders , an earnings statement covering the period of a majority of at least 12 months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company, ’s first full calendar quarter after the effective date of such Registration Statement which consent shall not be unreasonably withheld. If such firm or firms advise satisfies the Company and the Majority Requesting Holders that the inclusion provisions of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success Section 11(a) of the offering Securities Act and Rule 158 thereunder (a “Material Adverse Effect”or any successor rule promulgated thereafter by the Commission), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) ; and
3.1.10 Otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (GameSquare Holdings, Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) If at any time on or after the number Effective Time the Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), if any, and the Holders, and the Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders or the legal counsel for any the Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to: (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 advise the Holders, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any Prospectus forming a part of such registration statement has been filed (provided that any such notice may be made by the SEC issuance of a press release including such information);
3.1.9 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is or will become available on the Commission’s ▇▇▇▇▇ system;
3.1.10 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as promptly a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.11 permit a representative of the Holders, the Underwriter(s), if any, and any attorney or accountant retained by the Holders or such Underwriter(s) to participate, at each such Person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter(s), attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriter(s) enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter(s) may reasonably request, and reasonably satisfactory the Holders and such managing Underwriter;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, in the event of an Underwritten Offering, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Underwriter(s), if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Underwriter(s) may reasonably request and as are customarily included in such opinions and negative assurance letters;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s) of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 if a Registration, which consent shall not be unreasonably withheld. If such firm or firms advise including an Underwritten Offering, involves the Registration of Registrable Securities involving gross proceeds in excess of $5,000,000, use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter(s) in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Li-Cycle Holdings Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of In connection with any Registration Statement and whenever any Registrable Shares proposed Securities are to be sold and (ii) the intended method of disposition, registered pursuant to the extent then known.
(b) Upon receipt of any Demand RequestArticle 2, the Company shall promptly (but in any event within use commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as reasonably practicable without causing any undue disruption to the business of the immediately preceding paragraph.Company:
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by 3.1.1 prepare and file with the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Commission a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective for the Effectiveness Period (as defined below);
3.1.2 subject to Section 3.2, prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are no longer Registrable Securities (the “Effectiveness Period”);
3.1.3 prior to any public offering of Registrable Securities, use commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request in writing and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be reasonably necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection 3.1.3 or to take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.4 promptly notify the Holders of Registrable Securities of the receipt by the Company of any notification by a governmental authority or the Commission with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “Blue Sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, and in no event later than one (1) Business Day, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) Business Days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus, furnish a copy thereof to such Holder of such Registrable Securities or its counsel without charge (including any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein) and, thereafter, give good faith consideration to the comments of a single U.S. counsel for such sellers; provided, however, that the Company shall not be required to consider any comments received unless such comments shall have been received by the Company at least three (3) Business Days prior to the relevant filing;
3.1.9 as promptly as reasonably practicable.
(d) The Holders practicable after becoming aware of such event or facts, notify the Holders, at any time when a majority Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the Registrable Shares occurrence of any event or the existence of such facts as a result of which the Prospectus included in the Demand Request (the “Majority Requesting Holders”) shall have the right such Registration Statement, as then in effect, includes a Misstatement, and then, subject to select the investment banking firm or firms Section 3.2, to manage the Demand Offering correct such Misstatement as set forth in Section 3.2 hereof;
3.1.10 make available to its security holders (which firms shall may be represented satisfied by counsel designated by the Companymaking such information available on ▇▇▇▇▇), providedas soon as reasonably practicable, that such selection shall be subject to an earnings statement covering the consent period of at least twelve (12) months beginning with the first day of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise ’s first full calendar quarter after the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success Effective Date of the offering (a “Material Adverse Effect”), particular Registration Statement which satisfies the Company shall include in such Demand Offering the number provisions of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis Section 11(a) of the number of Registrable Shares owned Securities Act and Rule 158 thereunder (or any successor rule then in effect); and
3.1.11 otherwise, cooperate reasonably with, and take such customary actions as may reasonably be requested by each such Holder as of the date participating Holders, consistent with the terms of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) andAgreement, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus connection with any additional Registrable Shares acquired thereafter)Registration hereunder.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) If the number Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall, as expeditiously as possible:
3.1.1 prepare and file a Registration Statement with the Commission as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 with respect to such Registrable Securities and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective pursuant to the terms of this Agreement until all Registrable Securities covered by such Registration Statement have been sold in accordance with the intended plan of distribution of such Registrable Securities or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and each Holder of Registrable Securities included in such Registration, and such Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and each Holder of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission and publicly available pursuant to the Electronic Data Gathering Analysis and Retrieval System (“▇▇▇▇▇”);
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request (or provide evidence reasonably satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable any Holder of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 use its commercially reasonable efforts to cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4;
3.1.9 in the event of an Underwritten Offering, a Block trade, or a sale by a broker, placement agent, or sales agent pursuant to such Registration Statement, in each of the foregoing cases solely to the extent customary for a transaction of its type, permit a representative of the Holders (such representative to be selected by a majority in interest of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that any such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.10 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters for a transaction of its type as the managing Underwriter(s) may reasonably request;
3.1.11 on the date the Registrable Securities are delivered for sale pursuant to such Registration, in the event of an Underwritten Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Underwriters, the placement agent or sales agent, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Underwriters, placement agent or sales agent may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such Underwriters, placement agent or sales agent;
3.1.12 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form and as agreed to by the Company, with the managing Underwriter of such offering;
3.1.13 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission), which consent shall not requirement will be unreasonably withheld. If such firm or firms advise deemed satisfied if the Company timely files Forms 10-Q and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested 10-K, as may be required to be included filed under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
3.1.14 if the Registration involves the Registration of Registrable Securities involving gross proceeds in the Demand Offering would materially and adversely affect the price or success excess of $50,000,000, use its commercially reasonable efforts to make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”)road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.15 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Company shall include in such Demand Offering participating Holders, consistent with the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date terms of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) andAgreement, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)connection with such Registration.
Appears in 1 contract
Sources: Merger Agreement (10X Capital Venture Acquisition Corp. III)
General Procedures. (a) Each Demand Request shall specify: (i) If, at any time, the number Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a effect such Registration Statement to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as soon expeditiously as reasonably practicable and in possible but no event later more than sixty (60) days in following delivery of a Demand Registration:
3.1.1 prepare and file with the case of Commission as soon as reasonably practicable a Registration Statement on Form S-1 with respect to such Registrable Securities and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold; provided that the Company shall not be declared required to file such Registration Statement until such time as it has received any necessary information from the Holders;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the SEC Holder or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holder, and the Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holder or the legal counsel for the Holder may request in order to facilitate the disposition of the Registrable Securities owned by the Holder;
3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holder included in such Registration Statement (in light of its intended plan of distribution) may request and (ii) take reasonable such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all reasonable other acts and things that may be necessary or advisable to enable the Holder to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least three (3) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to the Holder of such Registrable Securities or its counsel;
3.1.9 notify the Holder at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holder, the Underwriters, if any, and any attorney or accountant retained by the Holder or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters; provided, however, that counsel for the Company shall not be required to provide any opinions with respect to any Holder,;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering; provided that such underwriting agreement shall not require the Company or any of its directors and officers to be locked up for any period of time following the date of the underwriting agreement.
3.1.14 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission); and
3.1.15 otherwise, which consent shall not in good faith, cooperate reasonably with, and take such customary actions as may reasonably be unreasonably withheld. If requested by the Holder, in connection with such firm or firms advise Registration, including, without limitation, making available senior executives of the Company and the Majority Requesting Holders to participate in any due diligence sessions that the inclusion of all Registrable Shares and Synthetic Primary Shares may be reasonably requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus Underwriter in any additional Registrable Shares acquired thereafter)Underwritten Offering.
Appears in 1 contract
Sources: Registration Rights Agreement (Kaspien Holdings Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) If and whenever Seller is required to register Registrable Securities, Seller will use its best efforts to effect such registration to permit the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.distribution thereof, and pursuant thereto Seller will as expeditiously as possible:
(ca) Subject to Section 2.2.3prepare and file with the SEC as soon as practicable, if a Shelf Registration Statement has but not been declared effective by later than thirty (30) days after the SECrequest for registration, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the Registrable Securities covered by such Registration Statement have been sold;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective requested by Buyer or any underwriter of Registrable Securities or as may be required by the SEC rules, regulations or instructions applicable to the registration form used by Seller or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c) deliver to Buyer and the underwriters, if any, without charge, as promptly many copies of each Prospectus (and each preliminary prospectus) as such Persons may reasonably practicable.request [Seller hereby consents to the use of each such Prospectus (or preliminary prospectus) by Buyer and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus (or preliminary prospectus)] and a reasonable number of copies of the then-effective Registration Statement and any post-effective amendments thereto and any supplements to the Prospectus, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(d) The Holders prior to any public offering of a majority Registrable Securities, register or qualify or cooperate with, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as Buyer or such underwriters may designate in writing and do anything else necessary or advisable at its sole cost and expense to enable the disposition in such jurisdictions of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated Securities covered by the Company), Registration Statement; provided, that such selection shall be subject to the consent of the Company, which consent Seller shall not be unreasonably withheld. If required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of jurisdiction where it is not then so subject;
(e) cause all such Registrable Shares and Synthetic Primary Shares requested Securities to be listed on each securities exchange or automated quotation system at its sole cost and expense on which similar securities issued by Seller are then listed;
(f) provide a transfer agent and registrar at its sole cost and expense for all such Registrable Securities not later than the effective date of such Registration Statement;
(g) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued; and
(h) notify Buyer at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinderRegistration Statement, as applicable (plus any additional Registrable Shares acquired thereafter) andthen in effect, includes a Misstatement, and then to correct such Misstatement as set forth in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Section 3.04.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time frame required by subsection 2.1.1, a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its reasonable best efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.11 permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included in participating Holders), the Demand Request (Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to review and comment on, at each such person’s own expense, the “Majority Requesting Holders”) shall have Registration Statement or the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Prospectus, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (DTRT Health Acquisition Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of In connection with any Demand RequestRegistration Statement, the Company shall promptly (but use its reasonable best efforts to effect such Registration Statement to permit the sale of the Shares included therein in any event within accordance with the shorter plan of (i) five (5) days distribution thereof, and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, pursuant thereto the Company shall not provide any Demand Notice to any Non-Private Equity Holder who shall, as expeditiously as is not an Informed Holder possible:
3.1.1 Prepare and shall not be obligated to, but may use its discretion after consultation file with the Private Equity Holders requesting Commission such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3this Agreement, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing and to remain effective, and available for use, until all such Shares have either been sold or may be declared sold without restriction pursuant to Rule 144;
3.1.2 Prepare and file with the Commission such amendments and post-effective amendments to such Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Unitholders’ Representative or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or the rules and regulations promulgated thereunder to keep such Registration Statement effective, and available for use, until all such Shares have either been sold or may be sold without restriction pursuant to Rule 144.
3.1.3 To the extent required by applicable law, use its reasonable best efforts to (a) register or qualify such Shares under the securities or “blue sky” laws of such jurisdictions in the United States as the Holders of such Shares may reasonably request, (b) take such action as is necessary to cause such Shares to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and (c) do any and all other acts and things that may be necessary or advisable to enable the Holders of such Shares to consummate the disposition of such Shares in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action which would subject it to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.4 Cause all such Shares to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.5 Provide a transfer agent or warrant agent, as applicable, and registrar for all such Shares no later than the effective date of such Registration Statement;
3.1.6 Advise each Holder of such Shares, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.7 At least five days prior to the filing of such Registration Statement or any Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable), furnish a copy thereof to each Holder of such Shares (excluding any exhibits thereto and any filing made under the Exchange Act, whether incorporated by reference therein or made a part thereof by amendment or supplement);
3.1.8 Notify the Holders of such Shares, at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which such Prospectus, as then in effect, includes a Misstatement, and promptly use its reasonable best efforts to correct such Misstatement as set forth in Section 3.3;
3.1.9 Make available to its security holders, as soon as reasonably practicable.
(d) The Holders , an earnings statement covering the period of a majority of at least 12 months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company, ’s first full calendar quarter after the effective date of such Registration Statement which consent shall not be unreasonably withheld. If such firm or firms advise satisfies the Company and the Majority Requesting Holders that the inclusion provisions of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success Section 11(a) of the offering Securities Act and Rule 158 thereunder (a “Material Adverse Effect”or any successor rule promulgated thereafter by the Commission), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) ; and
3.1.10 Otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration Statement.
Appears in 1 contract
Sources: Registration Rights and Lockup Agreement (Vivid Seats Inc.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of In connection with any Demand RequestShelf and/or Underwritten Offering, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to file a Registration Statement shall, as soon as reasonably practicable practicable:
3.1.1 prepare and in no event later than sixty (60) days in file with the case of SEC a Registration Statement on Form S-1 with respect to such Registrable Securities and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 at least two (2) Business Days prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, if any, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that in no event shall the Company be required to delay or postpone the filing of such Registration Statement or Prospectus as a result of or in connection with such Holders’ review;
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, registrar and a CUSIP number for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, within five (5) Business Days after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC as suspending the effectiveness of such Registration Statement or the initiation or threatening of any Legal Proceeding for such purpose and promptly as reasonably practicable.use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 notify the Holders, within five (d5) The Holders of Business Days, at any time when a majority Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the Registrable Shares happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.5;
3.1.9 in the Demand Request (event of an Underwritten Offering, in each of the “Majority Requesting Holders”) shall have following cases to the right to select extent customary for a transaction of its type, permit the investment banking firm Sponsor, the Underwriters or firms to manage the Demand Offering (which firms shall be represented by counsel designated other financial institutions facilitating such Underwritten Offering, if any, and any attorney, consultant or accountant retained by the Sponsor or Underwriters to participate, at each such Person’s own expense, in the preparation of the Registration Statement, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Underwritten Offering; provided, however, that such selection shall be subject representatives, Underwriters or financial institutions agree to the consent of confidentiality arrangements in form and substance reasonably satisfactory to the Company, which consent shall not be unreasonably withheld. If prior to the release or disclosure of any such firm or firms advise information;
3.1.10 in the event of an Underwritten Offering, permit the Sponsor to rely on any “cold comfort” letter from the Company’s independent registered public accountants provided to the managing Underwriter of such offering;
3.1.11 in the event of an Underwritten Offering, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of the Underwritten Offering, addressed to the Underwriters, if any, covering such legal matters with respect to the Underwritten Offering in respect of which such opinion is being given as the Underwriter may reasonably request and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be as are customarily included in such opinions and negative assurance letters;
3.1.12 in the Demand Offering would materially event of any Underwritten Offering, enter into and adversely affect perform its obligations under an underwriting agreement, in usual and customary form, with the price or success managing Underwriter of such offering;
3.1.13 in the event of any Underwritten Offering, use its commercially reasonable efforts to make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”), road show” presentations that may be reasonably requested by the Company shall include Underwriter in such Demand Offering Underwritten Offering; and
3.1.14 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among participating Holders, consistent with the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date terms of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) andAgreement, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (LIV Capital Acquisition Corp. II)
General Procedures. (a) Each Demand Request shall specify: (i) the number In connection with any Shelf and/or Shelf Takedown and/or other disposition of Registrable Shares proposed Securities pursuant to be sold and a registration statement contemplated herein (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestapplicable), the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be declared Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (i) as may be reasonably requested by (x) the Sponsor or (y) any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or (z) any Underwriter of Registrable Securities or (ii) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”);
3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent pursuant to such Registration, in each of the following cases to the extent customary for a transaction of its type, permit a representative of the Holders, the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration (subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel) in customary form and covering such matters of the type customarily covered by “cold comfort” letters for a transaction of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion and negative assurance letter, each dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agents or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion or negative assurance letter, as applicable, is being given as the participating Holders, broker, placement agent, sales agent or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, as applicable;
3.1.13 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the broker, placement agent or sales agent of such offering or sale;
3.1.14 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.15 with respect to an Underwritten Offering pursuant to Section 2.1.4, which consent shall not be unreasonably withheld. If such firm or firms advise use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if such Demand Underwriter, broker, sales agent or placement agent has not then been selected with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Requestregistration as an Underwriter, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement broker, sales agent or joinderplacement agent, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Yucaipa Acquisition Corp)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time frame required by Section 2.1.1, a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its best efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Business Combination Agreement (Climate Change Crisis Real Impact I Acquisition Corp)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting PersonsPerson”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty thirty (6030) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), ; provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter).
Appears in 1 contract
Sources: Registration Rights Agreement (Dynasty Financial Partners Inc.)
General Procedures. (a) Each Demand Request In connection with any Shelf and/or Underwritten Takedown, PubCo shall specify: (i) use reasonable efforts to effect such Registration to permit the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto PubCo shall, as expeditiously as possible:
3.1.1 prepare and file with the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until such time as there are no longer any Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC as promptly as reasonably practicable.
any Holder that holds at least five (d5.0%) The Holders of a majority percent of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm Securities registered on such Registration Statement, or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of an Underwritten Takedown where the Synthetic Primary SharesSponsor (acting on behalf of the Sponsor Parties) is a Demanding Holder, the number Sponsor (acting on behalf of the Sponsor Parties), or any Underwriter of Registrable Shares Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by PubCo or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use reasonable efforts to (a) register or qualify the Standing Instructions Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of PubCo and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that PubCo shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action which would subject it to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by PubCo are then listed;
3.1.6 provide a transfer agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of this Agreement such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly, and in no event later than one Business Day, after it shall receive notice or joinderobtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly take all actions reasonably required to prevent the entry of any stop order or to obtain its withdrawal if such stop order should be entered;
3.1.8 at least five (5) Business Days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein) and thereafter, take reasonable account of comments of counsel to such seller;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as applicable then in effect, includes a Misstatement, and then to promptly correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (plus such representative to be selected by a majority-in-interest of the participating Holders), the Underwriters, if any, and any additional attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense (other than with respect to Registration Expenses), in the preparation of the Registration Statement, and cause PubCo’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representative, or Underwriters enter into a confidentiality agreement, in customary form and substance reasonably satisfactory to PubCo, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from PubCo’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Registration, on the date the Registrable Shares acquired thereafterSecurities are delivered for sale pursuant to such Registration, obtain (a) an opinion, dated such date, of counsel representing PubCo for the purposes of such Registration, addressed to the participating Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions, and reasonably satisfactory to a majority-in-interest of the participating Holders, and (b) a negative assurance (“10b-5”) letter, dated such date, of counsel representing PubCo for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such 10b-5 letter is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such 10b-5 letters;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of PubCo’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.15 with respect to an Underwritten Offering pursuant to Section 2.4, use reasonable efforts to make available senior executives of PubCo to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Bridgetown 2 Holdings LTD)
General Procedures. (a) Each Demand Request Pubco shall specify: (i) use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto Pubco shall, as expeditiously as possible and to the extent applicable:
5.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 4.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
5.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (a) as may be declared effective reasonably requested by any Holder that holds at least five-percent (5%) of the Registrable Securities registered on such Registration Statement, any Underwriter or the Sponsor (provided that at the time of such request, [Callaway] and its Permitted Transferees holds at least 25% of the amount of outstanding Ordinary Shares of Pubco that they held immediately after the Closing), or (b) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by Pubco or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as promptly as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 5.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that Pubco will not have any obligation to provide any document pursuant to this subsection 5.1.3 that is available on the Commission’s E▇▇▇▇ system;
5.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of Pubco and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that Pubco shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
5.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by Pubco are then listed;
5.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
5.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
5.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that Pubco will not have any obligation to provide any document pursuant to this subsection 5.1.8 that is available on the Commission’s E▇▇▇▇ system;
5.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 5.4 of this Agreement;
5.1.10 in the event of an Underwritten Offering (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters or other financial institutions facilitating such Underwritten Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right Prospectus, and cause Pubco’s officers, directors and employees to select supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company)Registration; provided, providedhowever, that such selection shall be representatives or Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to Pubco, prior to the release or disclosure of any such information;
5.1.11 obtain a comfort letter from Pubco’s independent registered public accountants in the event of an Underwritten Offering (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such Registration (subject to the consent such Financial Counterparty providing such certification or representation reasonably requested by Pubco’s independent registered public accountants and Pubco’s counsel), in customary form and covering such matters of the Companytype customarily covered by comfort letters as the managing Underwriter may reasonably request, which consent shall not be unreasonably withheld. If and reasonably satisfactory to a majority-in-interest of the participating Holders;
5.1.12 in the event of an Underwritten Offering (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such firm or firms advise Registration, on the Company date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing Pubco for the purposes of such Registration, addressed to the participating Holders, the Financial Counterparty, if any, and the Majority Requesting Holders that Underwriters, if any, covering such legal matters with respect to the inclusion Registration in respect of all Registrable Shares which such opinion is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and Synthetic Primary Shares requested to be as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
5.1.13 in the Demand event of an Underwritten Offering would materially (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such Registration to which Pubco has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to Pubco;
5.1.14 in the event of any Underwritten Offering (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such Registration, enter into and adversely affect perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the price managing Underwriter or success the Financial Counterparty of such offering or sale;
5.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of Pubco’s first full calendar quarter after the effective date of the offering (a “Material Adverse Effect”), Registration Statement which satisfies the Company shall include in such Demand Offering the number provisions of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis Section 11(a) of the number Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
5.1.16 with respect to an Underwritten Offering pursuant to subsection 4.1.5 use its commercially reasonable efforts to make available senior executives of Registrable Shares owned Pubco to participate in customary “road show” presentations that may be reasonably requested by each such Holder as of the date of this Agreement or joinder, as applicable (plus Underwriter in any additional Registrable Shares acquired thereafter) and, Underwritten Offering;
5.1.17 in the case of certificated Registrable Securities, cooperate with the Synthetic Primary Shares, Holders and the number managing Underwriters to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Shares owned Securities to be sold after receiving written representations from the Holders participating in such offering that the Registrable Securities represented by the Standing Instructions certificates so delivered by such Holders will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as such Holders or managing Underwriters may reasonably request at least two business days prior to any sale of such Registrable Securities; and
5.1.18 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the date participating Holders, consistent with the terms of this Agreement Agreement, in connection with such Registration. Notwithstanding the foregoing, Pubco shall not be required to provide any documents or joinderinformation to an Underwriter or Financial Counterparty if such Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter or Financial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
Sources: Investor Rights Agreement (Galata Acquisition Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
distribution thereof (c) Subject to Section 2.2.3, if a Shelf and including all manners of distribution in such Registration Statement has not been declared effective as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by the SEClaw, upon receipt of any Demand Requestincluding pursuant to a Member Distribution), and pursuant thereto the Company shall (i) use its commercially reasonable best efforts to, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and approved by the Company, such approval not to be unreasonably withheld, and as set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters or Financial Counterparty, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s E▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it receives notice or obtains knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s E▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority-in-interest of the Holders), the Underwriters or other Financial Counterparty facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, Financial Counterparty, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or Financial Counterparty agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter (including a “cold comfort” letter, as applicable) from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (subject to such Financial Counterparty providing such certification or representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and/or negative assurance letter, as applicable, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the Financial Counterparty, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
3.1.13 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Financial Counterparty, to engage in such Underwritten Offering, Block Trade or Other Coordinated Offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.15 make available to its security holders, as soon as reasonably practicable.
(d) The Holders , an earnings statement covering the period of a majority of at least twelve months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission) provided that such requirement will be unreasonably withheld. If such firm or firms advise deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Majority Requesting Holders that Exchange Act and otherwise complies with Rule 159 under the inclusion of all Registrable Shares and Synthetic Primary Shares requested Securities Act or any successor rule thereto;
3.1.16 with respect to be included in the Demand an Underwritten Offering would materially and adversely affect the price or success pursuant to subsection 2.1.5, use its commercially reasonable efforts to make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”)road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration. Notwithstanding the foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
Sources: Business Combination Agreement (EGH Acquisition Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) In connection with effecting any Underwritten Offering, Block Trade, and/or Other Coordinated Offering, subject to applicable law and any regulations promulgated by any securities exchange on which the number Company’s equity securities are then listed, each as interpreted by the Company with the advice of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Requestits counsel, the Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, security holders or partners), and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Merger a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (a) as may be declared effective reasonably requested by any Holder that holds at least five-percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter, or (b) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as promptly as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters, or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (the “Majority Requesting Holders”) shall have the right subject to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated such Financial Counterparty providing such certifications and/or representations reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), providedin customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter or other similar type of sales agent or placement agent may reasonably request;
3.1.12 in the event of an Underwritten Offering, that a Block Trade, an Other Coordinated Offering or sale by an Underwriter pursuant to such selection shall be subject Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the consent participating Underwriter covering such legal matters with respect to the Registration in respect of which such opinion and negative assurance letter is being given as the participating Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Underwriter;
3.1.13 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by an Underwriter pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Underwriter in order to engage in such offering, allow the Underwriter to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 with respect to an Underwritten Offering pursuant to subsection 2.1.5 use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including pursuant to a Member Distribution), and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters or Financial Counterparty, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.3 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it receives notice or obtains knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that the Company will not have any obligation to provide any document pursuant to this subsection 3.1.8 that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority-in-interest of the Holders), the Underwriters or other Financial Counterparty facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, Financial Counterparty, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or Financial Counterparty agree to confidentiality arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter (including a “cold comfort” letter, as applicable) from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade or sale by a Financial Counterparty pursuant to such Registration (subject to such Financial Counterparty providing such certification or representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in- interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and/or negative assurance letter, as applicable, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the Financial Counterparty, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
3.1.13 in the event of an Underwritten Offering or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration to which the Company has consented, to the extent reasonably requested by such Financial Counterparty, to engage in such Underwritten Offering, Block Trade or Other Coordinated Offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.14 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.15 make available to its security holders, as soon as reasonably practicable.
(d) The Holders , an earnings statement covering the period of a majority of at least twelve months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission) provided that such requirement will be unreasonably withheld. If such firm or firms advise deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Majority Requesting Holders that Exchange Act and otherwise complies with Rule 159 under the inclusion of all Registrable Shares and Synthetic Primary Shares requested Securities Act or any successor rule thereto;
3.1.16 with respect to be included in the Demand an Underwritten Offering would materially and adversely affect the price or success pursuant to subsection 2.1.5, use its commercially reasonable efforts to make available senior executives of the offering (a Company to participate in customary “Material Adverse Effect”)road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration. Notwithstanding the foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter or Financial Counterparty if such Demand Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement an Underwriter or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
General Procedures. The Company shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission, within the time frame required by Section 2.1.1, in the English language a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Shelf Registration to become effective and remain effective, including filing a replacement Shelf Registration, if necessary, until all Registrable Securities covered by such Shelf Registration have been sold or are no longer outstanding (asuch period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration and such supplements to the Prospectus, as may be reasonably requested by the Demanding Holders or any Underwriter or as may be required by U.S. Securities Law to keep the Shelf Registration effective until all Registrable Securities covered by such Shelf Registration are sold in accordance with the intended plan of distribution set forth in such Shelf Registration or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Shelf Registration or Prospectus, or any amendment or supplement thereto, as applicable, furnish without charge to the Underwriters or Financial Counterparty, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade or Other Coordinated Offering, and such Holders’ legal counsel, copies of such Shelf Registration or Prospectus, as applicable, proposed to be filed, each amendment and supplement to such Shelf Registration (in each case including all exhibits thereto and documents incorporated by reference therein), Prospectus (including each preliminary Prospectus) Each Demand Request shall specify: and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Company’s SEDAR page or the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the number Registrable Securities covered by the Shelf Registration under such securities or “blue sky” laws of such jurisdictions of the United States as the Holders of Registrable Shares proposed to be sold Securities included in such Shelf Registration (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the intended method Shelf Registration to be registered with or approved by such other governmental authorities as may be necessary by virtue of disposition, to the extent then known.
(b) Upon receipt business and operations of any Demand Request, the Company shall promptly (but and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in any event within such Shelf Registration to consummate the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date disposition of such Demand Offering) give written notice (the “Demand Notice”) of Registrable Securities in such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holdersjurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action which would subject it to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of the applicable Shelf Registration;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop or cease trade order by the Commission suspending the effectiveness of a Shelf Registration or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop or cease trade order or to obtain its withdrawal if such stop or cease trade order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Shelf Registration or Prospectus or any amendment or supplement to such Shelf Registration or Prospectus or any document that is to be incorporated by reference into such Shelf Registration or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any Demand Notice document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any Non-Private Equity Holder who time when a Prospectus relating to such Shelf Registration is not required to be delivered under U.S. Securities Law;
3.1.10 in accordance with Section 3.4 of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4 of this Agreement;
3.1.11 in the event of an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a Financial Counterparty pursuant to provide such Registration, permit a Demand Notice representative of the Holders (such representative to Informed be selected by a majority-in-interest of the participating Holders), the Underwriters or other Financial Counterparty facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the preparation of the Shelf Registration and/or Prospectus and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, Financial Counterparty, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives or Underwriters or Financial Counterparty enter into confidentiality agreements, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a Demand comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering that is or sale by a “bought deal” or an “overnight” Public Offering Financial Counterparty pursuant to such Registration (subject to such Financial Counterparty providing such certification or representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 in the event of an effective Shelf Registration Statement; provided that Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a Financial Counterparty pursuant to such Registration, on the delivery date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the rightRegistration, exercisable by written notice addressed to the Company within such period of time specified by participating Holders or the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraphFinancial Counterparty, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offeringany, and the Demand Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion or negative assurance letter is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
3.1.14 in the event of an Underwritten Offering requested or a Block Trade, or an Other Coordinated Offering or sale by a Financial Counterparty pursuant to this Section 2.2.2(b) is such Registration to which the Company has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Underwriters or Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to the Company;
3.1.15 in the event of any Underwritten Offering, a “bought deal” Block Trade, an Other Coordinated Offering or an “overnight” Public Offering sale by a Financial Counterparty pursuant to such Registration, enter into and perform its obligations under an underwriting agreement or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the Financial Counterparty of such offering or sale;
3.1.16 make available to its security holders, as soon as reasonably practicable, an earning statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Shelf Registration Statement after which satisfies the Shelf Eligibility Dateprovisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.17 use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.18 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration. Notwithstanding the foregoing, the Company shall (absent other instructions by not be required to provide any Standing Instructions Holder) include in documents or information to an Underwriter or Financial Counterparty if such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds Underwriter or Financial Counterparty has not then been named with respect to the Company from such Demand applicable Underwritten Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in or other offering involving a Demand Offering for a “bought deal” registration as an Underwriter or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective by the SEC as promptly as reasonably practicable.
(d) The Holders of a majority of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. If such firm or firms advise the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinderFinancial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
Sources: Business Combination Agreement (Pyrophyte Acquisition Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of the immediately preceding paragraph.
(c) Subject to Section 2.2.3distribution thereof, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, and pursuant thereto the Company shall (i) use its reasonable best efforts to shall:
3.1.1 prepare and file with the Commission as soon as is reasonably practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 2.1 and remain effective until all Registrable Securities covered by such Registration Statement have ceased to be declared Registrable Securities (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the SEC Holders or any Underwriter of Registrable Securities or as promptly as reasonably practicable.may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering or Block Trade, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company will not have any obligation to provide any document pursuant to this Section 3.1.3 that is available on the Commission’s Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”) System;
3.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period (or such shorter period of time as may be necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable), furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein); provided that the Company will not have any obligation to provide any document pursuant to this Section 3.1.8 that is available on the Commission’s ▇▇▇▇▇ System;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 in the event of an Underwritten Offering, a Block Trade or an Other Coordinated Offering, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such Person’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by Prospectus, and cause the Company)’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such selection shall be subject representatives or Underwriters agree to confidentiality arrangements in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
3.1.11 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering (other than a Block Trade) or Other Coordinated Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in connection with an Underwritten Offering (other than a Block Trade) or Other Coordinated Offering, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority- in-interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering or Other Coordinated Offering, enter into and perform its obligations under an underwriting agreement or similar agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 with respect to an Underwritten Shelf Takedown pursuant to Section 2.1.4 involving gross proceeds in excess of the Minimum Takedown Threshold, which consent shall not be unreasonably withheld. If such firm or firms advise use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Shelf Takedown; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Majority Requesting Holders that participating Holders, consistent with the inclusion terms of all Registrable Shares and Synthetic Primary Shares requested to be included this Agreement, in connection with such Registration. Notwithstanding the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”)foregoing, the Company shall include in not be required to provide any documents or information to an Underwriter if such Demand Underwriter has not then been named with respect to the applicable Underwritten Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing or other offering involving a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder registration as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) and, in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)an Underwriter.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) If at any time on or after the number Effective Time the Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holder or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), if any, and the Holder, and the Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holder or the legal counsel for any the Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Holder; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to: (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holder (in light of its intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holder to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 advise the Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any Prospectus forming a part of such registration statement has been filed (provided that any such notice may be made by the SEC issuance of a press release including such information);
3.1.9 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is or will become available on the Commission’s ▇▇▇▇▇ system;
3.1.10 notify the Holder at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as promptly a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.11 permit a representative of the Holder, the Underwriter(s), if any, and any attorney or accountant retained by the Holder or such Underwriter(s) to participate, at each such Person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter(s), attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriter(s) enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter(s) may reasonably request, and reasonably satisfactory the Holder and such managing Underwriter;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, in the event of an Underwritten Offering, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Underwriter(s), if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Underwriter(s) may reasonably request and as are customarily included in such opinions and negative assurance letters;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s) of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 if a Registration, which consent shall not be unreasonably withheld. If such firm or firms advise including an Underwritten Offering, involves the Registration of Registrable Securities involving gross proceeds in excess of $5,000,000, use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter(s) in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolder, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Li-Cycle Holdings Corp.)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect the Registration of Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as practicable:
(a) subject to Section 2.1, prepare and file with the Commission a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective pursuant to the terms of this Agreement until all of such Registrable Securities have been disposed of (if earlier);
(b) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all of such Registrable Securities have been disposed of (if earlier) in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c) prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and to one legal counsel selected by the Holders, copies of such Registration Statement as promptly proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as reasonably practicable.the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel selected by such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
(d) The prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of a majority Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Shares Securities included in such Registration Statement to consummate the Demand Request disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(e) use its commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the “Majority Requesting Holders”Company are then listed;
(f) provide a transfer agent and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
(g) advise each seller of such Registrable Securities, promptly after it shall have receive notice or obtain knowledge thereof, of the right issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to select prevent the investment banking firm issuance of any stop order or firms to manage obtain its withdrawal if such stop order should be issued;
(h) at least five days prior to the Demand Offering filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
(i) notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which firms shall be represented the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
(j) permit a Representative of the Holders or of any Underwriter, if any, to participate, at each such person’s own expense (except to the extent any expenses of a Holder’s Representative constitute Registration Expenses), in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by counsel designated any such Representative in connection with the Registration; provided, however, that if any such Representative is not otherwise subject to confidentiality obligations, such Representative will enter into a confidentiality agreement, if requested by the Company), provided, that such selection shall be subject in form and substance reasonably satisfactory to the consent Company, prior to the release or disclosure of any such information;
(k) obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request;
(l) on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated as of such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as are customarily included in such opinions and negative assurance letters;
(m) in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, on terms agreed to by the Company with the managing Underwriter of such offering;
(n) make available to its security holders, as soon as reasonably practicable, an earnings statement (which need not be audited) covering the period of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
(o) if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, which consent shall not be unreasonably withheld. If such firm or firms advise use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include Underwriter in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable Underwritten Offering; and
(plus any additional Registrable Shares acquired thereafterp) andotherwise, in good faith, take such customary actions reasonably necessary to effect the case registration of the Synthetic Primary Shares, the number of such Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Securities contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Golden Nugget Online Gaming, Inc.)
General Procedures. (a) Each Demand Request Pubco shall specify: (i) use its commercially reasonable efforts to effect such Registration or Underwritten Offering to permit the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date resale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto Pubco shall, as expeditiously as possible and to the extent applicable:
5.1.1 prepare and file with the Commission after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its commercially reasonable best efforts to cause such Registration Statement to become effective in accordance with Section 4.1, including filing a replacement Registration Statement, if necessary, and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
5.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, (a) as may be declared effective reasonably requested by any Holder that holds at least five-percent (5%) of the Registrable Securities registered on such Registration Statement, any Underwriter or the Sponsor (provided that at the time of such request, [●] and its Permitted Transferees holds at least [●]% of the amount of outstanding Ordinary Shares of Pubco that they held immediately after the Closing), or (b) as may be required by the SEC rules, regulations or instructions applicable to the registration form used by Pubco or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the plan of distribution provided by the Holders and as promptly as reasonably practicable.set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
(d) The 5.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that Pubco will not have any obligation to provide any document pursuant to this subsection 5.1.3 that is available on the Commission’s ▇▇▇▇▇ system;
5.1.4 prior to any Underwritten Offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of Pubco and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that Pubco shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
5.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by Pubco are then listed;
5.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement or Underwritten Offering;
5.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
5.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided that Pubco will not have any obligation to provide any document pursuant to this subsection 5.1.8 that is available on the Commission’s ▇▇▇▇▇ system;
5.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 5.4 of this Agreement;
5.1.10 in the event of an Underwritten Offering (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such Registration, permit a representative of the Holders (such representative to be selected by a majority of the Registrable Shares included Holders), the Underwriters or other financial institutions facilitating such Underwritten Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the Demand Request (preparation of the “Majority Requesting Holders”) shall have Registration Statement or the right Prospectus, and cause Pubco’s officers, directors and employees to select supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company)Registration; provided, providedhowever, that such selection shall be representatives or Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to Pubco, prior to the release or disclosure of any such information;
5.1.11 obtain a comfort letter from Pubco’s independent registered public accountants in the event of an Underwritten Offering (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such Registration (subject to the consent such Financial Counterparty providing such certification or representation reasonably requested by Pubco’s independent registered public accountants and Pubco’s counsel), in customary form and covering such matters of the Companytype customarily covered by comfort letters as the managing Underwriter may reasonably request, which consent shall not be unreasonably withheld. If and reasonably satisfactory to a majority-in-interest of the participating Holders;
5.1.12 in the event of an Underwritten Offering (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such firm or firms advise Registration, on the Company date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing Pubco for the purposes of such Registration, addressed to the participating Holders, the Financial Counterparty, if any, and the Majority Requesting Holders that Underwriters, if any, covering such legal matters with respect to the inclusion Registration in respect of all Registrable Shares which such opinion is being given as the participating Holders, Financial Counterparty or Underwriter may reasonably request and Synthetic Primary Shares requested to be as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such participating Holders, Financial Counterparty or Underwriter;
5.1.13 in the Demand event of an Underwritten Offering would materially (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such Registration to which Pubco has consented, to the extent reasonably requested by such Financial Counterparty in order to engage in such offering, allow the Financial Counterparty to conduct customary “underwriter’s due diligence” with respect to Pubco;
5.1.14 in the event of any Underwritten Offering (including an underwritten block trade) or sale by a Financial Counterparty pursuant to such Registration, enter into and adversely affect perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the price managing Underwriter or success the Financial Counterparty of such offering or sale;
5.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of Pubco’s first full calendar quarter after the effective date of the offering (a “Material Adverse Effect”), Registration Statement which satisfies the Company shall include in such Demand Offering the number provisions of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis Section 11(a) of the number Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
5.1.16 with respect to an Underwritten Offering pursuant to subsection 4.1.5 use its commercially reasonable efforts to make available senior executives of Registrable Shares owned Pubco to participate in customary “road show” presentations that may be reasonably requested by each such Holder as of the date of this Agreement or joinder, as applicable (plus Underwriter in any additional Registrable Shares acquired thereafter) and, Underwritten Offering;
5.1.17 in the case of certificated Registrable Securities, cooperate with the Synthetic Primary Shares, Holders and the number managing Underwriters to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Shares owned Securities to be sold after receiving written representations from the Holders participating in such offering that the Registrable Securities represented by the Standing Instructions certificates so delivered by such Holders will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as such Holders or managing Underwriters may reasonably request at least two business days prior to any sale of such Registrable Securities; and
5.1.18 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the date participating Holders, consistent with the terms of this Agreement Agreement, in connection with such Registration. Notwithstanding the foregoing, Pubco shall not be required to provide any documents or joinderinformation to an Underwriter or Financial Counterparty if such Underwriter or Financial Counterparty has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter or Financial Counterparty, as applicable (plus any additional Registrable Shares acquired thereafter)applicable.
Appears in 1 contract
Sources: Investor Rights Agreement (Crown Reserve Acquisition Corp. I)
General Procedures. (a) Each Demand Request shall specify: (i) If at any time on or after the number date of this Agreement, the Company is required to effect the Registration of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto (excluding any current or periodic report filed under Section 13 or 15(d) of the Exchange Act), furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 advise each Holder of Registrable Securities covered by such Registration Statement, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any Prospectus (excluding any current or periodic report filed under Section 13 or 15(d) of the Exchange Act) forming a part of such registration statement has been filed;
3.1.9 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (excluding any current or periodic report filed under Section 13 or 15(d) of the Exchange Act), furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.10 notify the Holders at any time when a Prospectus relating to such Registration Statement 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, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the SEC preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as promptly the managing Underwriter may reasonably request, and reasonably satisfactory to such managing Underwriter;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to an Underwritten Registration, obtain an opinion and negative assurance letter, each dated such date, of counsel representing the Company for the purposes of such Underwritten Registration, addressed to the Underwriters covering such legal matters with respect to the Underwritten Registration in respect of which such opinion is being given as the managing Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such managing Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority months beginning with the first day of the Registrable Shares included in Company’s first full calendar quarter after the Demand Request effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated any successor rule promulgated thereafter by the CompanyCommission), ; provided, that such selection shall be subject the Company will not have any obligation to provide any information pursuant to this clause that is available on the consent Commission’s ▇▇▇▇▇ system;
3.1.16 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $50,000,000, use its reasonable efforts to make available senior executives of the Company, which consent shall not Company to participate in customary “road show” presentations that may be unreasonably withheld. If such firm or firms advise reasonably requested by the Company and the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: In the event that a Magnetar Holder delivers (i) the number a Demand Notice covering at least $50.0 million of Registrable Shares proposed Securities in the aggregate (calculated as of the date of the Demand Notice based on the Registrable Securities Amount) and such Demand Notice specifies that such Magnetar Holder intends to be sold and sell its Preferred Unit Registrable Securities under a registration statement pursuant to an Underwritten Offering or (ii) a written notice electing to sell at least $50.0 million of Common Unit Registrable Securities in the intended method aggregate (calculated as of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice based on the Registrable Securities Amount) under a Registration Statement pursuant to an Underwritten Offering (including a Registration Statement that is then currently effective) (but expressly excluding any notices delivered pursuant to Section 2.02 of this Agreement) (each such notice so delivered in accordance with the foregoing provisions of this paragraph is referred to herein as an “Demand Underwritten Offering Notice”) ), the Partnership shall retain underwriters as contemplated below in this paragraph in order to permit such Magnetar Holder, together with all other Holders who elect to participate in such Underwritten Offering in accordance with the below provisions of this paragraph, to effect such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holderssale through an Underwritten Offering; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice Magnetar Holders shall have the option and right, exercisable by written notice to require the Partnership to effect not more than one (1) Underwritten Offering of Common Unit Registrable Securities and one (1) Underwritten Offering of Preferred Unit Registrable Securities, pursuant to and subject to the Company within such period conditions of time specified by the Company in such Demand this Section 2.04. Upon delivery of an Underwritten Offering Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility DatePartnership, the Company Partnership shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable and (but in no event later than sixty two (602) days Business Days following the date of delivery of such Underwritten Offering Notice to the Partnership) deliver notice of such Underwritten Offering Notice to all other Holders who shall then have two (2) Business Days from the date that such notice is given to them to notify the Partnership in writing of the case number of a Registration Statement on Form S-1 and twenty (20) days Registrable Securities held by such Holder that they want to be included in such Underwritten Offering. For the case avoidance of a Registration Statement on Form S-3 (or, in each casedoubt, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to be declared effective Holders notified about an Underwritten Offering by the SEC as promptly as reasonably practicable.
(d) The Holders Partnership after the Partnership has received the corresponding Underwritten Offering Notice, may participate in such Underwritten Offering, but shall not count toward the $50.0 million of Registrable Securities necessary to request an Underwritten Offering pursuant to an Underwritten Offering Notice. In connection with any Underwritten Offering under this Agreement, the party responsible for payment of at least a majority of the Registrable Shares included Registration Expenses in the Demand Request (the “Majority Requesting Holders”) connection with such Underwritten Offering shall have the right be entitled to select the investment banking firm Managing Underwriter or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company)Underwriters for such Underwritten Offering, provided, that such selection shall be subject to the consent of the Company, other party (which consent shall not be unreasonably withheld, conditioned or delayed). In connection with an Underwritten Offering contemplated by this Agreement in which a Holder so elects to participate, each such Holder and the Partnership shall be obligated to enter into an underwriting agreement that contains such representations, covenants, indemnities and other rights and obligations as are customary in underwriting agreements for firm commitment offerings of securities. No such Holder may participate in such Underwritten Offering unless such Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. Each such Holder may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Partnership to and for the benefit of such underwriters also be made to and for such Holder’s benefit and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement also be conditions precedent to its obligations. No such Holder shall be required to make any representations or warranties to or agreements with the Partnership or the underwriters other than representations, warranties or agreements regarding such Holder, its authority to enter into such underwriting agreement and to sell, and its ownership of, the securities whose offer and resale will be registered, on its behalf, its intended method of distribution and any other representation required by Law. If any such firm or firms advise Holder disapproves of the Company terms of an underwriting, such Holder may elect to withdraw therefrom by notice to the Partnership and the Majority Requesting Managing Underwriter; provided, however, that any such withdrawal must be made no later than the time of pricing of such Underwritten Offering. If all such Holders (including the Magnetar Holder who delivered the applicable Underwritten Offering Notice) withdraw from one Underwritten Offering of either Common Unit Registrable Securities or Preferred Unit Registrable Securities prior to the public announcement of such Underwritten Offering (an “Underwritten Offering Withdrawal”), the Partnership and the Holders will share equally the Registration Expenses that the inclusion Partnership would otherwise be required to pay, and the Underwritten Offering Withdrawal will not be considered an Underwritten Offering and will not decrease the number of available Underwritten Offerings the Magnetar Holders have the right and option to request under this Section 2.04. Upon the occurrence of a subsequent Underwritten Offering Withdrawal of either Common Unit Registrable Securities or Preferred Unit Registrable Securities, the right of the Magnetar Holders to demand an Underwritten Offering for the Common Unit Registrable Securities or the Preferred Unit Registrable Securities, as applicable, shall terminate unless the Holders pay all Registrable Shares Registration Expenses incurred in connection with such Underwritten Offering Withdrawal. If the Managing Underwriter of any such Underwritten Offering advises the Partnership and Synthetic Primary Shares requested the Magnetar Holder who delivered the applicable Underwritten Offering Notice that the total amount of Preferred Units in the case of a Preferred Unit Registration Statement or the total amount of Common Units in the case of a Common Unit Registration Statement (as applicable) that such Magnetar Holder and such other Holders exceeds the number that can be sold in such Underwritten Offering without being likely to have an adverse effect on the price, timing or distribution of the Preferred Units or the Common Units (as applicable) offered or the market for the Preferred Units or the Common Units (as applicable), then the Preferred Units or the Common Units (as applicable) to be included in the Demand such Underwritten Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Preferred Unit Registrable Shares Securities or Common Unit Registrable Securities (as applicable) that such Managing Underwriter advises such Magnetar Holder and Synthetic Primary Shares which the Partnership can be so sold without causing a Material Adverse Effect having such adverse effect, with such number to be allocated (i) first, pro rata among the Holders who delivered the Demand Requestsuch Magnetar Holder and such other Holders, the Other Requesting Persons and the Company based, for such Magnetar Holder or each such other Holder (as applicable), on the basis of percentage derived by dividing (x) the number of Preferred Unit Registrable Shares owned Securities or Common Unit Registrable Securities (as applicable) proposed to be sold by each such Magnetar Holder or such other Holder (as applicable) by (y) the aggregate number of Preferred Unit Registrable Securities or Common Unit Registrable Securities (as applicable) proposed to be sold by such Magnetar Holder and all such other Holders, (ii) second, to the Partnership and Teekay and its Affiliates pursuant to any registration rights existing as of the date of this Agreement and (iii) third, to any current or joinder, as applicable (plus future holder of any additional Registrable Shares acquired thereafter) and, in the case securities of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Partnership granted registration rights in accordance with Section 2.12 hereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Teekay Offshore Partners L.P.)
General Procedures. (a) Each Demand Request shall specify: (i) If and whenever the number of Company is required to register Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand RequestSecurities, the Company shall promptly (but in any event within will use its best efforts to effect such registration to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto the immediately preceding paragraph.Company will as expeditiously as possible:
(ca) Subject to Section 2.2.3prepare and file with the SEC as soon as practicable, if a Shelf Registration Statement has but not been declared effective by later than thirty (30) days after the SECrequest for registration, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the Registrable Securities covered by such Registration Statement have been sold;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective requested by Buyers or any underwriter of Registrable Securities or as may be required by the SEC rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
(c) deliver to Buyers and the underwriters, if any, without charge, as promptly many copies of each Prospectus (and each preliminary prospectus) as such Persons may reasonably practicable.request [the Company hereby consents to the use of each such Prospectus (or preliminary prospectus) by Buyers and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus (or preliminary prospectus)] and a reasonable number of copies of the then-effective Registration Statement and any post-effective amendments thereto and any supplements to the Prospectus, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(d) The Holders prior to any public offering of a majority Registrable Securities, register or qualify or cooperate with, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as Buyers or such underwriters may designate in writing and do anything else necessary or advisable at its sole cost and expense to enable the disposition in such jurisdictions of the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated Securities covered by the Company), Registration Statement; provided, that such selection shall be subject to the consent of the Company, which consent Company shall not be unreasonably withheld. If required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such firm jurisdiction where it is not then so subject;
(e) cause all such Registrable Securities to be listed on each securities exchange or firms advise automated quotation system at its sole cost and expense on which similar securities issued by the Company are then listed;
(f) provide a transfer agent and registrar at its sole cost and expense for all such Registrable Securities not later than the Majority Requesting Holders that effective date of such Registration Statement;
(g) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the inclusion issuance of all Registrable Shares any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and Synthetic Primary Shares requested promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued; and
(h) notify Buyers at any time when a prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinderRegistration Statement, as applicable (plus any additional Registrable Shares acquired thereafter) andthen in effect, includes a Misstatement, and then to correct such Misstatement as set forth in the case of the Synthetic Primary Shares, the number of Registrable Shares owned by the Standing Instructions Holders as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter)Section 3.05.
Appears in 1 contract
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included in accordance with the terms of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file a Registration Statement as soon as reasonably practicable and in no event later than sixty (60) days with the Commission, within the time frame required by subsection 2.1.1 or in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of filed pursuant to subsection 2.1.3, as soon as practicable, a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving with respect to such Demand Request (the “Required Filing Date”) Registrable Securities and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, including filing a replacement Registration Statement, if necessary, until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Demanding Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any Registration of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act of the happening of any event as a result of which a Misstatement exists, and then to use best efforts to correct such Misstatement as soon as possible and otherwise as set forth in Section 3.4 of this Agreement;
3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such Person’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain comfort letters from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and customary negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable.
, an earnings statement covering the period of at least twelve (d12) The Holders of a majority of months beginning with the Registrable Shares included in the Demand Request (the “Majority Requesting Holders”) shall have the right to select the investment banking firm or firms to manage the Demand Offering (which firms shall be represented by counsel designated by the Company), provided, that such selection shall be subject to the consent first day of the Company, ’s first full calendar quarter after the effective date of the Registration Statement which consent shall not be unreasonably withheld. If such firm satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or firms advise any successor rule promulgated thereafter by the Commission);
3.1.16 use its reasonable efforts to make available senior executives of the Company and to participate in customary “road show” presentations that may be reasonably requested by the Majority Requesting Holders that the inclusion of all Registrable Shares and Synthetic Primary Shares requested to be included Underwriter in the Demand Offering would materially and adversely affect the price or success of the offering (a “Material Adverse Effect”), the Company shall include in such Demand Offering the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Underwritten Offering; and
3.1.17 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Business Combination Agreement (Spartan Acquisition Corp. II)
General Procedures. (a) Each Demand Request shall specify: (i) the number of Registrable Shares proposed to be sold and (ii) the intended method of disposition, to the extent then known.
(b) Upon receipt of any Demand Request, the The Company shall promptly (but in any event within use its best efforts to effect such Registration or Underwritten Offering to permit the shorter of (i) five (5) days and (ii) the number of days from the Demand Request to the date sale or other disposition of such Demand Offering) give written notice (the “Demand Notice”) of such proposed Demand Offering to the other Private Equity Holders and, subject to the proviso, all Informed Holders; provided, however, the Company shall not provide any Demand Notice to any Non-Private Equity Holder who is not an Informed Holder and shall not be obligated to, but may use its discretion after consultation with the Private Equity Holders requesting such Demand Offering, to provide a Demand Notice to Informed Holders in connection with a Demand Offering that is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement; provided that the delivery of such Demand Notice will not delay the proposed Demand Offering. Each other Private Equity Holder and Informed Holder that receives a Demand Notice shall have the right, exercisable by written notice to the Company within such period of time specified by the Company in such Demand Notice (but not to exceed five (5) days), to irrevocably elect to include in such Demand Offering such portion of its Registrable Shares as it may request (each such electing Informed Holder, an “Other Requesting Persons”). Each Other Requesting Person may condition the inclusion of any Registrable Shares or any specified number of Registrable Shares in such Demand Offering on the price to the public per share of Class A Common Stock in such Demand Offering being equal to or exceeding one or more minimum prices specified by the Company in such Demand Notice. Notwithstanding anything to the contrary in the immediately preceding paragraph, if Standing Instructions provide for Registrable Shares held by Standing Instructions Holders to be included in the Demand Offering, and the Demand Offering requested pursuant to this Section 2.2.2(b) is a “bought deal” or an “overnight” Public Offering pursuant to an effective Shelf Registration Statement after the Shelf Eligibility Date, the Company shall (absent other instructions by any Standing Instructions Holder) include in such Demand Offering shares of Class A Common Stock to be issued and sold by the Company for its own account (the “Synthetic Primary Shares”) and use the proceeds to the Company from such Demand Offering solely to purchase outstanding Units pursuant to such Standing Instructions and pay related fees and expenses. In such event, such Standing Instructions Holders shall not be included in a Demand Offering for a “bought deal” or an “overnight” Public Offering. In addition, no Non-Private Equity Holders shall be included in a Demand Offering for a ‘bought deal” or an “overnight” Public Offering unless the Company has delivered a Demand Notice to it and such Non-Private Equity Holder elects to be included Securities in accordance with the terms intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible and to the extent applicable:
3.1.1 prepare and file with the Commission as soon as practicable after the consummation of the immediately preceding paragraph.
(c) Subject to Section 2.2.3, if a Shelf Registration Statement has not been declared effective by the SEC, upon receipt of any Demand Request, the Company shall (i) use its reasonable best efforts to file Business Combination a Registration Statement as soon as reasonably practicable with respect to such Registrable Securities and in no event later than sixty (60) days in the case of a Registration Statement on Form S-1 and twenty (20) days in the case of a Registration Statement on Form S-3 (or, in each case, any successor form) after receiving such Demand Request (the “Required Filing Date”) and (ii) use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold or are no longer outstanding (such period, the “Effectiveness Period”);
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be declared effective reasonably requested by the SEC Holders or any Underwriter or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or are no longer outstanding;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration or Underwritten Offering, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or Underwritten Offering or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 during the Effectiveness Period, furnish a conformed copy of each filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, promptly after such filing of such documents with the Commission to each seller of such Registrable Securities or its counsel; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s ▇▇▇▇▇ system;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act;
3.1.10 subject to the provisions of this Agreement, notify the Holders of the happening of any event as a result of which a Misstatement exists, and then to correct such Misstatement as set forth in Section 3.4;
3.1.11 permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement or the Prospectus, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain a comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, in customary form and covering such matters of the type customarily covered by comfort letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to such placement agent, sales agent or Underwriter;
3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
3.1.15 make available to its security holders, as soon as reasonably practicable., an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.16 use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering;
3.1.17 until the date the Registrable Securities may be sold under Rule 144, in order to permit the Holders to conduct sales (dincluding continuous offerings based on market prices and block trades) The Holders of a majority of the Registrable Shares included in Securities offered pursuant to the Demand Request Registration Statement (the “Majority Requesting HoldersBrokerage Trades”) shall have the right to select the through two or more reputable investment banking firm banks or firms to manage the Demand Offering (which firms shall be represented by counsel other reputable broker-dealers designated by the CompanyCompany (“Financial Counterparties”): (a) enter into an equity distribution agreement or sales agreement with the Financial Counterparties, in customary form, which shall include, among other provisions, indemnities similar to those in Article III, and representations, covenants and other indemnities and rights and obligations as are customary in equity distribution agreements for issuer ATM programs (including an obligation of the Company to reimburse the Financial Counterparties for the expense of one counsel to the Financial Counterparties), provided(b) notify the Holders of the identities of the Financial Counterparties, that such selection shall be subject (c) to the consent of extent requested by a Financial Counterparty in order to engage in Brokerage Trades, the Company shall allow the Financial Counterparties to conduct customary “underwriter’s due diligence” with respect to the Company, which consent shall not may be unreasonably withheld. If such firm or firms advise on a periodic “bring down” basis when the Company files periodic or current reports or there is material news about the Company, including (1) by using commercially reasonable efforts to cause its independent certified public accountants to provide to the Financial Counterparties a “cold comfort” letter in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Majority Requesting Holders that Financial Counterparties, (2) by using commercially reasonable efforts to cause its outside counsel to the inclusion of all Registrable Shares Company to deliver an opinion in form, scope and Synthetic Primary Shares requested substance as is customarily given in an underwritten public offering, including a standard “10b-5” letter for such offering, addressed to be included in the Demand Offering would materially Financial Counterparties, and adversely affect (3) by providing a standard officer’s certificate from the price chief executive officer or success chief financial officer, or other officers serving such functions, of the offering Company addressed to the Financial Counterparties and (a “Material Adverse Effect”), d) shall take such other reasonable action as requested by the Company shall include Financial Counterparties in such Demand Offering order to expedite or facilitate the number of Registrable Shares and Synthetic Primary Shares which can be so sold without causing a Material Adverse Effect pro rata among the Holders who delivered the Demand Request, the Other Requesting Persons and the Company on the basis of the number of Registrable Shares owned by each such Holder as of the date of this Agreement or joinder, as applicable (plus any additional Registrable Shares acquired thereafter) Brokerage Trades; and
3.1.18 otherwise, in the case of the Synthetic Primary Sharesgood faith, the number of Registrable Shares owned cooperate reasonably with, and take such customary actions as may reasonably be requested by the Standing Instructions Holders as of the date of this Agreement or joinderHolders, as applicable (plus any additional Registrable Shares acquired thereafter)in connection with such Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Beard Energy Transition Acquisition Corp.)