Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possible: (i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto. (ii) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement. (iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities. (iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject. (v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof. (vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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. (vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act. (viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company. (ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities. (x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities. (b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi). (c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration. (d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer. (e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3. (f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement. (g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration. (h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Stockholders’ Agreement (Accretive Health, Inc.), Stockholders’ Agreement (Accretive Health, Inc.), Stockholders’ Agreement (Accretive Health, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof2.1 and, as applicable, 2.2, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a the Registration Statement, or amendments thereto, to effect such registration statement with respect to (including such Registrable audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the Commission, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.1); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare with respect to any registration statement pursuant to Section 2.1, prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with until the intended methods earlier to occur of disposition by six (6) years after the seller date of this Agreement(subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive days or sellers thereof set forth an aggregate of 30 days in such six (6) years period) or such time as all of the securities which are the subject of such registration statement.statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period");
(iii) Furnish furnish to each holder seller of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(iv) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each any seller thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities a signed counterpart, subjectaddressed to such seller, howeverand the underwriters, to the limitations set forth in clauses if any, of:
(A)) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement),reasonably satisfactory in form and substance to such seller) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(B) a "comfort" letter (or, in the case of any Person which does not satisfy the conditions for receipt of a "comfort" letter specified in Statement on Auditing Standards No. 72, an "agreed upon procedures" letter), dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter of like kind dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statement included in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities (with, in the case of an "agreed upon procedures" letter, such modifications or deletions as may be required under Statement on Auditing Standards No. 35) and, in the case of the accountants' letter, such other financial matters, and, in the case of the legal opinion, such other legal matters, as such seller (or the underwriters, if any) may reasonably request;
(vii) notify the Sellers' Representative and its counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(A) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective;
(B) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(C) of Section 6.3(a)(iv) hereof.the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(viD) Immediately of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(viii) notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver seller promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.;
(viiix) Otherwise use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(x) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiixi) Use its best efforts in cooperation with the underwriters, if any, to list enter into such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders Sellers' Representative shall reasonably request in writing (at the expense of the requesting or benefiting sellers) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.; and
(bxii) Each use its commercially reasonable best efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Registrable Securities are then listed. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing. The Company will not file any registration statement pursuant to Section 2.1, or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference and proposed to be filed after the initial filing of the Registration Statement) to which the Sellers' Representative shall reasonably object, provided that the Company may file such documents in a form required by law or upon the advice of its counsel. The Company represents and warrants to each holder of Registrable Securities willthat it has obtained all necessary waivers, consents and authorizations necessary to execute this Agreement and consummate the transactions contemplated hereby other than such waivers, consents and/or authorizations specifically contemplated by the Securities Purchase Agreement. Each Fund agrees that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in subdivision (viii) of this Section 6.3(a)(vi)2.3, such Fund will forthwith discontinue such Fund's disposition of the Registrable Securities pursuant to the registration statement covering Registration Statement relating to such Registrable Securities until such holder’s Fund's receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (viii) of this Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees2.3 and, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such information as Fund's possession of the Company may reasonably request from prospectus relating to such holder concerning such holder and its intended method of distribution of Registrable Securities to enable current at the Company to include time of receipt of such information in the registration statementnotice.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement (Directplacement Inc), Registration Rights Agreement (Directplacement Inc), Registration Rights Agreement (Dial Thru International Corp)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof2.1 and, as applicable, 2.2, the Company willshall, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a the Registration Statement or amendments thereto, to effect such registration statement with respect to (including such Registrable audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the Commission, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.1); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject ;
(b) with respect to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected statement pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare 2.1, prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with until the intended methods earlier to occur of disposition by five (5) years after the seller date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive days or sellers thereof set forth an aggregate of 30 days in such five (5) years period) or such time as all of the securities which are the subject of such registration statement.statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period");
(iiic) Furnish furnish to each holder seller of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(ivd) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each any seller thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (d) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities;
(f) furnish to each seller of Registrable Securities a signed counterpart, subjectaddressed to such seller, howeverand the underwriters, if any, of:
(1) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(2) a "comfort" letter (or, in the case of any Person which does not satisfy the conditions for receipt of a "comfort" letter specified in Statement on Auditing Standards No. 72, an "agreed upon procedures" letter), dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter of like kind dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statement included in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the limitations set forth date of such financial statements, as are customarily covered in clauses opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities (A)with, in the case of an "agreed upon procedures" letter, such modifications or deletions as may be required under Statement on Auditing Standards No. 35) and, in the case of the accountants' letter, such other financial matters, and, in the case of the legal opinion, such other legal matters, as such seller (Bor the underwriters, if any) may reasonably request;
(g) notify the Sellers' Representative and its counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(C1) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective;
(2) of Section 6.3(a)(iv) hereof.any request by the Commission for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(vi3) Immediately of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(h) notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver seller promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.;
(viii) Otherwise use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(j) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holdersHolders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiik) Use its best efforts in cooperation with the underwriters, if any, to list enter into such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders Sellers' Representative shall reasonably request in writing (at the expense of the requesting or benefiting seller) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.; and
(bl) Each use its commercially reasonable best efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Registrable Securities are then listed. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing. The Company will not file any registration statement pursuant to Section 2.1, or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference and proposed to be filed after the initial filing of the Registration Statement) to which the Sellers' Representative shall reasonably object, provided that the Company may file such documents in a form required by law or upon the advice of its counsel. The Company represents and warrants to each holder of Registrable Securities willthat it has obtained all necessary waivers, consents and authorizations necessary to execute this Agreement and consummate the transactions contemplated hereby other than such waivers, consents and/or authorizations specifically contemplated by the Securities Purchase Agreement. The Fund agrees that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in subdivision (h) of this Section 6.3(a)(vi)2.3, the Fund will forthwith discontinue the Fund's disposition of the Registrable Securities pursuant to the registration statement covering Registration Statement relating to such Registrable Securities until such holder’s Fund's receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (h) of this Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees2.3 and, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in the Fund's possession of the prospectus relating to such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable current at the Company to include time of receipt of such information in the registration statementnotice.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement (ERF Wireless, Inc.), Registration Rights Agreement (ERF Wireless, Inc.), Registration Rights Agreement (Galaxy Minerals Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts by the provisions of Section 1 or 2 to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofAct, the Company will, at its expense, as expeditiously as possible:
(i) Prepare prepare and, in any event within sixty (60) calendar 45 days after the end of the period within which requests a request for registration may be has been given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement Registration Statement with respect to such Registrable Securities and use its best efforts to cause such registration statement Registration Statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, PROVIDED that the Company may withdraw or discontinue any registration of its securities that which is being effected pursuant to Section 6.2 2 at any time prior to the effective date of the registration statement relating thereto.Registration Statement;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement any Registration Statement referred to in clause (i) of this Section 3 and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a period and updated until such time as may be requested all of the Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Requesting Holder or Holders not exceeding nine (9) months set forth in such Registration Statement and to comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement Registration Statement during such period in accordance with the intended methods of disposition by the seller Holder or sellers Holders thereof set forth in such registration statement.
(iii) Furnish Registration Statement; PROVIDED that before filing a Registration Statement or prospectus, or any amendments or supplements thereto, the Company will furnish, at the Company's expense, to each holder one counsel selected jointly by the Holders holding a majority of the Registrable Securities covered by such Registration Statement to represent all Holder's of Registrable Securities covered by such Registration Statement, copies of all documents proposed to be filed, which documents will be subject to the registration statement and review of such counsel;
(iii) furnish to each underwriter, if any, Holder of such Registrable Securities Securities: (a) such number of copies of a any Registration Statement referred to in clause (i) of this Section 3 and of each amendment and supplement thereto (in each case including all exhibits); (b) such number of copies of the prospectus included in such Registration Statement (including each preliminary prospectus and preliminary summary prospectus), and any other prospectus for delivery filed under Rule 424 under the Securities Act in conformity with the requirements of the Securities Act, ; and (c) such other documents as such Person Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request,
(iv) Use use its best efforts to register or qualify such Registrable Securities covered by such registration statement any Registration Statement referred to in clause (i) of this Section 3 under such other securities or blue sky laws of such domestic jurisdictions as each seller Holder shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(ivclause (iv), it is would not then be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its best efforts to cause such Registrable Securities covered by such registration statement a Registration Statement to be registered or qualified with or approved by such other domestic governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately cause representatives of the Company to participate in any "road show" or "road shows" reasonably requested by any underwriter of an underwritten or "best efforts" offering of any Registrable Securities;
(vii) notify each seller of any such Registrable Securities covered by such registration statementa Registration Statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within or of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes Company's becoming aware that the prospectus included in such registration statementRegistration Statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 at the request of any such seller, prepare and furnish to such seller a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the sellers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omits 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;
(viiviii) Otherwise otherwise use its best efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holdersHolders, in each case as soon as practicable, reasonably practicable (but not later more than ninety (90eighteen months) calendar days after the close effective date of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company)Registration Statement, an earnings statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act.Act and the rules and regulations promulgated thereunder;
(viiiix) Use use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each any securities exchange as they may reasonably designate, or automated quotation system on which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily same class are then listed, if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange or system, and to provide a transfer agent and registrar for such Registrable Securities covered by such letters as a Registration Statement not later than the Requesting Holders reasonably request in order to effect an Underwritten Offering effective date of such Registrable Securities.Registration Statement;
(x) Execute and deliver all instruments and documents enter into such customary agreements (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain as sellers of a majority of such certificates and opinions as Registrable Securities or the Requesting Holders underwriters, if any, reasonably request in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.;
(bxi) Each holder of Registrable Securities will, upon receipt of any notice obtain a "cold comfort" letter or letters from the Company Company's independent public accountants in customary form and covering matters of the happening type customarily covered by "cold comfort" letters as the seller or sellers of any event a majority of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt shall reasonably request;
(xii) obtain an opinion of counsel for the Company in customary form and covering matters of the copies type customarily covered in opinions of issuer's counsel as the seller or sellers of a majority of such Registration Securities shall reasonably request; and
(xiii) make available for inspection by any seller of such Registrable Securities covered by a Registration Statement by any underwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten OfferingCompany, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent and cause all of the managing Company's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (attorney, accountant or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed agent in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3Registration Statement.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement (Barringer Laboratories Inc), Registration Rights Agreement (Lavelle J Francis), Registration Rights Agreement (Barringer Laboratories Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 2.1 and 2.2, the Company will, will as expeditiously as possiblepracticable:
(i) Prepare and, in any event within sixty (60A) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement on the appropriate form which includes such Registrable Securities, (B) promptly respond to all comments received with respect to such Registrable Securities registration statement and make and file all amendments thereto deemed necessary by the Company’s legal counsel, and (C) thereafter use its best reasonable efforts to cause such registration statement to become and remain effective; provided that, in effective at the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.earliest practicable date;
(ii) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement accurate and effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities and other securities covered by such registration statement during until the earlier of such period in accordance with the intended methods time as all of disposition such Registrable Securities have been disposed of by the seller or sellers thereof set forth in such registration statement.statement or for the longer of (A) nine months or (B) if the Company is eligible to conduct a continuous secondary offering pursuant to Rule 415 under the Securities Act, two years;
(iii) Furnish furnish to each holder such seller of Registrable Securities covered by at least two Business Days prior to the filing thereof a copy of any amendment or supplement to such registration statement or prospectus and not file any such amendment or supplement to which any such seller shall have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder;
(iv) furnish to each underwriter, if any, seller of such Registrable Securities one copy of such registration statement and of each such amendment thereof and supplement thereto (in each case including all exhibits and documents filed therewith), such number of copies of a the prospectus included in such registration statement (including each preliminary prospectus and preliminary prospectus for delivery any summary prospectus), in conformity with the requirements of the Securities Act, such documents, if any, incorporated by reference in such registration statement or prospectus, and such other documents as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(ivv) Use use its best reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller thereof shall reasonably request, request and to keep such registration or qualification in effect for so long as such registration statement remains in effect and do any and all other acts and things which that may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the its Registrable Securities owned covered by such seller in such jurisdictionsregistration statement, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction wherewherein it would not, but for the requirements of this Section 6.3(a)(ivsubdivision (v), it is not then be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.jurisdiction;
(vi) Immediately notify each seller of Registrable Securities of any stop order issued or threatened by the SEC and take all reasonable action required to prevent the entry of such stop order or to remove it if entered;
(vii) if such registration statement relates to an underwritten offering, (A) enter into an underwriting agreement with the underwriters for such offering, in form and substance satisfactory to each seller of Registrable Securities and the underwriters and containing such representations and warranties by the Company and such other terms as are generally prevailing in underwriting agreements of the same type, including, without limitation, indemnities to the effect and to the extent provided in Section 2.5, and (B) obtain and furnish to each seller of Registrable Securities a signed counterpart, addressed to such seller, of the legal opinions and accountants’ comfort letters which are to be delivered to the underwriters;
(viii) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(ix) promptly notify each seller whose Registrable Securities are covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in the light of the circumstances then existing; use its best efforts to , and promptly prepare and file an appropriate amendment or a supplement to or an amendment of such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.;
(viix) Otherwise otherwise use its best reasonable efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security securities holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first month of the Company first fiscal quarter after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiixi) Use its best efforts in cooperation with the underwriters, if any, to list cause all such Registrable Securities to be listed on each securities exchange as they may reasonably designate, on which securities exchanges shall be acceptable to the Company.Common Stock is then listed;
(ixxii) In the event the offering is an Underwritten Offering, use its best commercially reasonable efforts to obtain a “cold comfort” letter from cause its management to participate fully in the independent public accountants for sale process relating to such offering, including the Company in customary form and covering such matters preparation of the type customarily covered by applicable registration statement and the preparation and presentation of any “road shows,” whether domestic or international; and
(xiii) take all such letters other commercially reasonable actions as the Requesting Holders reasonably request are necessary or advisable in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as expedite or facilitate the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering covered by such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement (Midland States Bancorp, Inc.), Registration Rights Agreement (Midland States Bancorp, Inc.), Registration Rights Agreement (Midland States Bancorp, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement (including pursuant to a Demand Registration Request given under Section 6.1 or 6.2 hereof4(a)), the Company will, as expeditiously as reasonably possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities Securities, and use its best efforts to cause such registration statement to become effective and remain effective; provided thatto keep the sellers of Registrable Securities advised in writing of the initiation and progress of proceedings regarding such registration, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, furtherhowever, that the Company may discontinue any registration of its securities that which is being effected pursuant to Section 6.2 Sections 3 or 4 herein at any time prior to the effective date of the registration statement relating thereto.thereto (but only to the extent set forth in the proviso contained in Section 3(a));
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested of not less than 180 days or such shorter period which will terminate when all Registrable Securities covered by such registration statement have been sold (but not before the Requesting Holders not exceeding nine (9expiration of the 90-day period referred to in Section 4(3) months of the Securities Act and to Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish ; provided, however, that prior to each holder filing with the Commission any such registration statement, prospectus or amendment or supplement thereto, the Company shall furnish copies thereof to counsel for the sellers of Registrable Securities covered under such registration statement, which document will be subject to reasonably prompt review by the registration statement and such counsel;
(c) furnish to each underwriter, if any, seller of such Registrable Securities such number of copies of a such registration statement and of each such amendment and supplement thereof (in each case including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and preliminary prospectus for delivery summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities by such seller;
(ivd) Use use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsseller; provided, except however, that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject or subject itself to general taxation in any jurisdiction where it is not then so subject.;
(ve) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately immediately notify each seller of any Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in clause (b) of this Section 6.3(a)(ii)5, if of the Company becomes becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any 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; use its best efforts to , and within ten days prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver all sellers a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.;
(viif) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each any securities exchange as they may on which the Common Stock is then listed or NASDAQ if the Common Stock is then quoted on NASDAQ, if such Registrable Securities are not already so listed or quoted and if such listing is then permitted under the rules of such exchange or NASDAQ, and provide an independent transfer agent and registrar for such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(g) furnish to each seller of Registrable Securities covered by such registration statement a signed counterpart, addressed to such seller (and the underwriters, if any) of:
(i) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration involves an underwritten public offering, dated the date of the closing under the underwriting agreement), reasonably designate, which securities exchanges shall be acceptable satisfactory in form and substance to the Company.sellers of not less than 50% of such Registrable Securities (and the managing underwriter, if any); and
(ixii) In a “comfort” letter, dated the event the offering is effective date of such registration statement (or, if such registration involves an Underwritten underwritten Public Offering, use its best efforts to obtain dated the date of the underwriting agreement and a “cold comfortbring down” letter from dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering such matters with respect to such registration statement as are customarily covered in accountants’ letters delivered to the underwriters in Underwritten Offerings of securities as may reasonably be requested by the sellers of not less than 50% of such Registrable Securities (and the managing underwriter, if any); and
(h) make available for inspection by any seller of such Registrable Securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter (individually, an “Inspector” and collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company as shall be reasonably necessary to enable them to exercise their due diligence responsibilities (collectively, the “Records”), and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, or Inspector in connection with such registration statement; provided that any Records that are designated by the Company in customary writing as confidential shall be kept confidential by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission of material fact in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or by any regulatory authority having jurisdiction. Each Investor agrees that non-public information obtained by it as a result of such Inspections shall be deemed confidential and acknowledges its obligations under the Federal securities laws not to trade any securities of the Company on the basis of material non-public information. The Company may require each seller of Registrable Securities as to which any registration is being effected promptly to furnish to the Company (i) an opinion of counsel for such seller dated the effective date of the registration statement relating to such seller’s Registrable Securities (or, if such registration involves an underwritten Public Offering, dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and covering substance to the Company (and the managing underwriter, if any) and (ii) such matters of information regarding the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering distribution of such Registrable Securities.
(x) Execute Securities as may be legally required. Such information shall be furnished in writing and deliver all instruments and documents (including shall state that it is being furnished for use in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) registration statement. Each holder of Registrable Securities willagrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in clause (e) of this Section 6.3(a)(vi)5, such holder will forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the supplemented or amended prospectus contemplated by clause (e) of this Section 5, and, if so directed by the Company, such holder will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of the Company’s notice. In the event the Company shall give any such notice, the period mentioned in clause (b) of this Section 5 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to clause (e) of this Section 5 and including the date when each seller of Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
clause (e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.35.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Securities Holders Agreement (Sheridan Group Inc), Securities Holders Agreement (Sheridan Group Inc), Registration Rights Agreement (Sheridan Group Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 5.1, 5.2 and 5.3 the Company will, shall as expeditiously as reasonably possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration ("Selling Holders") copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; , and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant such review to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.be conducted with reasonable promptness;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 5.1, the expiration of 60 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 5.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 5.3, the expiration of one year after such registration statement becomes effective;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.;
(vii) Otherwise use its best efforts to comply in connection with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company in customary form and Company, covering such the matters of the type customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.Selling Holder and underwriters, and
(x2) Execute and deliver all instruments and documents a "comfort" letter (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities case of any holder in such Person which does not satisfy the event that the Company shall obtain an opinion conditions for receipt of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.a
Appears in 3 contracts
Sources: Stockholders Agreement (Fortress Investment Group LLC), Stockholders Agreement (Brookdale Senior Living Inc.), Stockholders Agreement (Brookdale Senior Living Inc.)
Registration Procedures. (a) If and whenever the Company OWW is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, OWW shall:
(a) prepare and file with the Company will, SEC as expeditiously as possible:
(i) Prepare and, possible but in any no event within sixty (60) calendar later than 90 days after the end receipt of the period within which requests a request for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities, an automatically effective shelf registration statement on Form S-3, if available to OWW at such time, or, if not, a registration statement on any form for which OWW then qualifies or which counsel for OWW shall deem appropriate, which form shall be available for the sale of the Registrable Securities in accordance with the intended methods of distribution thereof, and use its best efforts to cause such registration statement to become effective as soon as practicable, and remain effectiveto maintain the effectiveness of such form for three years from the date of its effectiveness; provided thatprovided, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that before filing with the SEC a registration statement or prospectus or any amendments or supplements thereto, the Company will including any documents incorporated by reference therein, OWW shall (x) furnish to the Travelport and to one counsel selected by the Requesting Holders Travelport (or by Travelport and holders of other securities covered by such registration statement, but in no event to more than one firm of attorneys for all such selling security holders) copies of all such documents proposed to be filed, which documents will shall be subject to the timely and reasonable review of Travelport and such counsel; , and provided, further, that (y) notify Travelport of any stop order issued or threatened by the Company may discontinue any registration SEC and take all reasonable actions required to prevent the entry of its securities that is being effected pursuant such stop order or to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.remove it if entered;
(iib) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested of not less than 180 days or such shorter period which shall terminate when all Registrable Securities covered by such registration statement have been sold (but not before the Requesting Holders not exceeding nine (9expiration of the applicable period referred to in Section 4(3) months of the Securities Act and to Rule 174, or any successor thereto, thereunder, if applicable), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.;
(iiic) Furnish furnish, without charge, to each holder of Registrable Securities covered by the registration statement Travelport and to each underwriter, if any, of such Registrable Securities such number of copies of a such registration statement, each amendment and supplement thereto (including one conformed copy to Travelport and one signed copy to each managing underwriter and in each case including all exhibits thereto), and the prospectus and included in such registration statement (including each preliminary prospectus for delivery prospectus), in conformity with the requirements of the Securities Act, and such other documents as such Person Travelport may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities registered thereunder;
(ivd) Use use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall the selling holders, and the managing underwriter, if any, reasonably request, requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller the selling holders and each underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsregistered thereunder; provided, except that the Company OWW shall not for any such purpose be required to (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(ivparagraph (d), it is not then so qualified, or (Bii) to subject itself to taxation in any such jurisdiction, jurisdiction or (Ciii) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (includingimmediately notify the managing underwriter, without limitationif any, state securities commissions) as may be necessary to enable Travelport and the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, selling holders at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), happening of any event which comes to OWW’s attention if the Company becomes aware that as a result of such event the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to misleading, and OWW shall promptly prepare and file an appropriate furnish to the selling holders a supplement or amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, that as thereafter delivered to the purchasers of such Registrable Securitiesdelivered, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading; provided, however, that if OWW determines in good faith that the disclosure that would be required to be made by OWW would be materially harmful to OWW because of transactions then being considered by, or other events then concerning, OWW, or a supplement or amendment to such prospectus at such time would require the inclusion of pro forma or other information, which requirement OWW is reasonably unable to comply with, then OWW may defer, for a reasonable period of time not to exceed 90 days, furnishing to the selling holders a supplement or amendment to such prospectus; provided further, that at all times OWW is in good faith using all reasonable efforts to file such amendment as soon as practicable;
(f) use its best efforts to cause all such securities being registered to be listed on each securities exchange on which similar securities issued by OWW are then listed, and enter into such customary agreements including a listing application and indemnification agreement in customary form, provided, that the applicable listing requirements are satisfied, and to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement no later than the effective date of such registration statement;
(g) make available for inspection by Travelport and any holder of securities covered by such registration statement, any underwriter participating in any offering pursuant to such registration statement, and any attorney, accountant or other agent retained by such Persons (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the OWW Affiliated Group as shall be reasonably necessary to enable them to exercise their due diligence responsibilities, and cause officers, directors and employees of members of the OWW Affiliated Group to supply all information and respond to all inquiries reasonably requested by any such Inspector in connection with such registration statement. Notwithstanding the foregoing, OWW shall have no obligation to disclose any such records to the Inspectors in the light event OWW determines that such disclosure is reasonable likely to have an adverse effect on OWW’s ability to assert the existence of an attorney-client privilege with respect thereto;
(h) if requested, use its best efforts to obtain a “cold comfort” letter from OWW’s independent public accountants in customary form and covering such matters of the circumstances then existing.type customarily covered by “cold comfort” letters;
(viii) Otherwise make available senior management personnel to participate in, and cause them to cooperate with the underwriters in connection with, “road show” and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities;
(j) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days an earning statement covering a period of at least 12 months, beginning with the first month after the close effective date of the period covered thereby registration statement (one hundred eighty (180as the term “effective date” is defined in Rule 158(c) calendar days in case under the period covered corresponds to a fiscal year of the CompanySecurities Act), an earnings which earning statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder; and
(viiik) Use its best efforts in cooperation with if requested to do so by the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offeringselling holders, use its best efforts to obtain create a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder depositary arrangement whereby depositary shares representing fractional shares of Registrable Securities will, upon receipt of any notice from will be issued and to cause to be prepared and to execute customary documentation with respect to such depositary arrangement and such other documentation that the Company selling holders may reasonably request to facilitate the disposition of the happening depositary shares created thereunder (including, but not limited to, engaging a depositary and preparing and executing a depositary agreement). It shall be a condition precedent to the obligation of OWW to take any event of the kind described action pursuant to this Agreement in Section 6.3(a)(vi), forthwith discontinue disposition respect of the Registrable Securities which are to be registered at the request of any member of the Travelport Affiliated Group that Travelport shall furnish to OWW such information regarding the securities of OWW held by Travelport and the intended method of disposition thereof as OWW shall reasonably request and as shall be required in connection with the action taken by OWW. Travelport agrees that, unless it obtains the prior consent of the OWW, and OWW agrees that, unless it obtains the prior consent of Travelport, it will not make any offer pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves this Article V that would constitute an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included “issuer free writing prospectus,” as defined in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 433 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than that would otherwise constitute a “free writing prospectus,” as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except defined in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right Rule 405 under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act, required to be filed with the SEC; provided that this paragraph shall not restrict either Travelport or OWW from making any filings required to comply with their respective reporting obligations under the Exchange Act or the rules and regulations thereunder.
Appears in 3 contracts
Sources: Separation Agreement (Travelport LTD), Separation Agreement (Orbitz Worldwide, Inc.), Separation Agreement (Orbitz Worldwide, Inc.)
Registration Procedures. (a) If and whenever It shall be a condition precedent to the obligations of the Company is to take any action pursuant to this Article III that the Stockholders requesting inclusion in any Piggyback Registration or Demand Registration (a “Registration”) shall furnish to the Company such information regarding them, the Registrable Securities owned by them, the intended method of disposition of such Registrable Securities, and such agreements regarding indemnification, disposition of such securities and other matters referred to in and consistent with this Article III, as the Company shall reasonably request and as shall be required in connection with the action to use its best efforts to effect or cause be taken by the registration Company (such intended method of distribution may include a distribution to, and resale by, the partners of the holders of any Registrable Securities). With respect to any Registration which includes Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofowned by a Stockholder, the Company will, as expeditiously as possiblesubject to Sections 3.01 and 3.02:
(a) As promptly as possible (in the case of a Demand Registration, no more than (i) Prepare and, in any event within sixty (60) calendar 45 days after the end Company’s receipt of the period within which requests a Request Notice that is not for registration may be given to the Company a Registration on Form S-3 or any successor or comparable form and (or within ninety (90ii) 30 days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), receipt of a Request Notice that is for a Registration on Form S-3 or any successor or comparable form) prepare and file with the Commission a registration statement with respect to on the appropriate form prescribed by the Commission for such Registrable Securities and intended method of disposition, use its reasonable best efforts to cause such registration statement to become and remain effectiveeffective as soon as practicable thereafter; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will shall furnish to counsel representing the counsel selected by the Requesting Holders Stockholders selling Registrable Securities under such Registration copies of all such documents proposed to be filed, which documents will shall be subject to the timely review and reasonable review comments of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant shall not be obligated to Section 6.2 at any time prior to the maintain such Registration effective date for a period longer than (x) 360 days or (y) such shorter period when all of the Registrable Securities covered by such registration statement relating thereto.have been sold pursuant thereto (the “Effectiveness Period”);
(iib) Prepare and file with the Commission such amendments (including and post-effective amendments) and supplements amendments to such registration statement and the prospectus used in connection therewith any documents required to be incorporated by reference therein as may be necessary to keep such the registration statement effective for a period of not less than the Effectiveness Period (but not prior to the expiration of the time period referred to in Section 3(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the prospectus to be supplemented by any required prospectus supplement, and as may so supplemented to be requested by filed pursuant to Rule 424 under the Requesting Holders not exceeding nine (9) months 1933 Act and to comply with the 1933 Act in a timely manner; and comply with the provisions of the Securities 1933 Act applicable to it with respect to the disposition of all securities Registrable Securities covered by such registration statement during such the applicable period in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or supplement to the prospectus;
(iiic) Promptly incorporate in a prospectus supplement or post-effective amendment such information as the underwriter(s) or the Majority Stockholder reasonably requests to be included therein relating to the plan of distribution with respect to such Registrable Securities; and make all required filings of such prospectus supplements or post-effective amendments as soon as practical after being notified of the matters to be incorporated in such supplement or amendment;
(d) Furnish to such Stockholder, without charge, such number of conformed copies of the registration statement and any post-effective amendment thereto as such Stockholder may reasonably request, and such number of copies of the prospectus (including each holder preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein, as such Stockholder or underwriter or underwriters, if any, may request in order to facilitate the disposition of Registrable Securities the securities being sold by such Stockholder (it being understood that the Company consents to the use of the prospectus and any amendment or supplement thereto by such Stockholder covered by the registration statement and to each underwriterthe underwriter or underwriters, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity connection with the requirements offering and sale of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate securities covered by the public sale prospectus or other disposition of the Registrable Securities.any amendments or supplements thereto);
(ive) Use its best efforts to register or qualify Notify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statementStockholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii)1933 Act, if when the Company becomes aware that of the happening of any event as a result of which the prospectus included in such registration statement, statement (as then in effect, includes an ) contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the prospectus or any preliminary prospectus, in light of the circumstances then existing; use its best efforts to under which they were made) not misleading and, as promptly as practicable thereafter, prepare and file an appropriate with the Commission and furnish a supplement or amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers investors of such Registrable Securitiessecurities, such prospectus shall will not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existing.under which they were made, not misleading;
(viif) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make Make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), holders an earnings statement of the Company statement, which will satisfy need not be audited, satisfying the provisions of Section 11(a) of the Securities Act.1933 Act as soon as reasonably practicable after the end of the 12-month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the registration statement, which statement shall cover said 12-month period;
(viiig) Use After the filing of a registration statement, (i) notify each Stockholder holding Registrable Securities covered by such registration statement of any stop order issued or, to the Company’s knowledge, threatened by the Commission and of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction, (ii) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement or the qualification of any Registrable Securities at the earliest possible moment, and (iii) make available for inspection by any seller of Registrable Securities, any underwriter participating in cooperation any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Representatives to supply all such information reasonably requested by any such seller, underwriter, attorney, accountant, or agent in connection with such registration statement;
(h) In connection with the preparation and filing of each Registration, give each holder of Registrable Securities included in such Registration, the underwriter(s) and their respective counsel, accountants and other Representatives and agents the opportunity to participate in the preparation of each registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto and comparable statements under the securities or blue sky laws of any jurisdiction and give each of the foregoing Persons access to the books and records, pertinent corporate and business documents and properties of the Company and its subsidiaries and such opportunities to discuss the business and affairs of the Company and its subsidiaries with the respective Representatives and the independent public accountants who have certified the Company’s consolidated financial statements, and supply all other information and respond to all other inquiries requested by such holders, underwriter(s), counsel, accountants and other Representatives and agents as shall be necessary or appropriate, in the opinion of such holders or underwriter(s), to conduct a reasonable investigation within the meaning of the 1933 Act, and the Company shall not file any registration statement or amendment thereto or any prospectus or supplement thereto to which such holder or such underwriter(s) shall object;
(i) Cause its employees to participate in “road shows” and other presentations as reasonably requested by the underwriters in connection with such Registration;
(j) Deliver promptly to counsel representing the Stockholders selling Registrable Securities under such Registration and each underwriter, if any, participating in the offering of the Registrable Securities, copies of all correspondence between the Commission and the Company, its counsel or auditors, and all memoranda relating to discussions with the Commission or its staff with respect to such Registration; and
(k) On or prior to the date on which the registration statement is declared effective, use its reasonable best efforts to (i) register or qualify, and cooperate with such underwriter or underwriters, if any, and their counsel in connection with the registration or qualification of, the securities covered by the registration statement for offer and sale under the securities or blue sky laws of each state and other jurisdiction of the United States as the managing underwriter or underwriters, if any, requests in writing, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its reasonable best efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Registrable Securities covered by the applicable registration statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject, (ii) obtain a “cold comfort” letter from the Company’s independent public accountants for in customary form and covering such matters of the type customarily covered by comfort letters, which letter shall be addressed to the underwriters, and the Company shall use its reasonable best efforts to cause such comfort letter to also be addressed to the holders of such Registrable Securities, (iii) obtain an opinion from the Company’s outside counsel in customary form and covering such matters of the type customarily covered by such letters as opinions, which opinion shall be addressed to the Requesting Holders reasonably request in order to effect an Underwritten Offering underwriters and the holders of such Registrable Securities.
, and (xiv) Execute enter into and deliver all instruments and documents perform its obligations under such customary agreements (including in an Underwritten Offering an underwriting agreement agreements in customary form) and take all such other actions and obtain such certificates and opinions as the Requesting Holders holders of a majority of the Registrable Securities included in the Request Notice, in the case of a Demand Registration, or the holders of a majority of the Registrable Securities being sold or the underwriters, if any, in the case of a Piggyback Registration, reasonably request in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.
Securities (b) Each holder including effecting a stock split, combination of Registrable Securities willshares, recapitalization, or reorganization). The Stockholders, upon receipt of any notice from the Company of the happening of any event of the kind described in subsection (e) of this Section 6.3(a)(vi)3.03, will forthwith discontinue disposition of the Registrable Securities pursuant to until the registration statement covering such Registrable Securities until such holder’s Stockholders’ receipt of the copies of the supplemented or amended prospectus contemplated by subsection (e) of this Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 3.03 or 6.2 hereof involves an Underwritten Offeringuntil it is advised in writing by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus, and, if so directed by the Company, each Stockholder will, or will request the managing underwriter or underwriters, if any, to, deliver, to the Company (at the Company’s sole expense) all copies, other than permanent file copies then in such Stockholder’s possession, of the prospectus covering such securities current at the time of receipt of such notice. No holder of Registrable Securities agreesshall be required to make any representations or warranties to or agreements with the Company, whether or not other than representations and warranties regarding such holder, such holder’s ownership of and title to the Registrable Securities are included to be sold in such registrationoffering, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution and any liability of any such holder under such underwriting agreement shall be limited to liability arising from breach of its representations and warranties therein and shall be limited to an amount equal to the net amount received by such holder from the sale of Registrable Securities pursuant to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Smart & Final Stores, Inc.), Registration Rights Agreement (Smart & Final Stores, Inc.)
Registration Procedures. (a) If and whenever the Company Corporation is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof5.1, Section 5.2, and Section 5.3, the Company will, Corporation shall as expeditiously as reasonably possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement with respect to effect such Registrable Securities registration and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effective; provided thateffective pursuant to the terms of this Agreement and cause such registration statement to contain a “Plan of Distribution” that permits the distribution of securities pursuant to all legal means; provided, in however, that the case Corporation may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or statement, prospectus or any amendments or supplements thereto, the Company Corporation will furnish to the counsel selected by the Requesting Holders Stockholders which are including Registrable Securities in such registration copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; , and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant such review to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.be conducted with reasonable promptness;
(ii) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 5.1, the expiration of ninety (90) days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 5.2, the expiration of ninety (90) days after such registration statement becomes effective or (iii) in the case of a shelf registration pursuant to Section 5.3, the expiration of two (2) years after such registration statement becomes effective;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Stockholder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Stockholder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and each free writing prospectus for delivery (as defined in Rule 405 of the Securities Act) (a “Free Writing Prospectus”) utilized in connection therewith 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 Person Selling Stockholder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Selling Stockholder;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Stockholder and any underwriter of the securities being sold by such Selling Stockholder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Stockholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Stockholder, except that the Company Corporation shall not for any such purpose be required to (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) file a general consent to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Corporation are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the National Securities Exchange on which the Common Shares are listed;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) Governmental Entities as may be necessary to enable the seller or sellers each Selling Stockholder thereof to consummate the disposition of such Registrable SecuritiesSecurities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Stockholder and underwriter:
(A) an opinion of counsel for the Corporation, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Stockholder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Corporation’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any Selling Stockholder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Stockholder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Corporation (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility in connection with such registration statement, and cause the Corporation’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Corporation shall not be required to provide any information under this subparagraph (viii) if (i) the Corporation believes, after consultation with counsel for the Corporation, that to do so would cause the Corporation to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Corporation has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Corporation reasonably determines that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Selling Stockholder requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Corporation; and provided, further, that each Selling Stockholder agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Stockholder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement or any Free Writing Prospectus utilized in connection therewith, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC or any other Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any other Governmental Entity of Section 6.3(a)(iv) hereof.any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(viD) Immediately the receipt by the Corporation of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each seller of Registrable Securities covered by such registration statementSelling Stockholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to misleading, and promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver Selling Stockholder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading;
(xi) use commercially reasonable efforts to prevent the light issuance of and, if issued, obtain the withdrawal of any order suspending the effectiveness of such registration statement or any suspension of the circumstances then existing.qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction;
(viixii) Otherwise otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holderseach Selling Stockholder, in each case as soon as reasonably practicable, an earning statement of the Corporation covering the period of at least twelve (12) months, but not later more than ninety eighteen (9018) calendar days months, beginning with the first day of the Corporation’s first full quarter after the close effective date of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company)such registration statement, an earnings which earning statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) cooperate with the Selling Stockholders and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Stockholders may request and keep available and make available to the Corporation’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates, or, if requested by a Selling Stockholder or an underwriter, to facilitate the delivery of such securities in book-entry form;
(xiv) have appropriate officers of the Corporation prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its commercially reasonable efforts to cooperate as reasonably requested by the Selling Stockholders and the underwriters in the offering, marketing or selling of the Registrable Securities; provided, that such presentations, meetings, actions and efforts do not cause unreasonable disruption to the management of the Corporation’s business;
(xv) with respect to each Free Writing Prospectus or other materials to be included in the Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as defined in Rule 159A(b) promulgated under the Securities Act) such Free Writing Prospectus or other materials without the prior written consent of the Stockholders holding the Registrable Securities covered by such registration statement, which Free Writing Prospectuses or other materials shall be subject to the prior reasonable review of the Selling Stockholders and their counsel;
(xvi) (A) as expeditiously as possible and within the deadlines specified by the Securities Act, make all required filings of all prospectuses and Free Writing Prospectuses with the SEC and (B) within the deadlines specified by the Exchange Act, make all filings of periodic and current reports and other materials required by the Exchange Act;
(xvii) as expeditiously as possible and within the deadlines specified by the Securities Act, make all required filing fee payments in respect of any registration statement or prospectus used under this Agreement (and any offering covered thereby);
(xviii) as expeditiously as practicable, keep the Selling Stockholders and their counsel advised as to the initiation and progress of any registration hereunder;
(xix) cooperate with each Selling Stockholder and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority (“FINRA”);
(xx) furnish the Selling Stockholders, their counsel and the underwriters, as expeditiously as possible, copies of all correspondence with or from the SEC, the FINRA, any stock exchange or other self-regulatory organization relating to the registration statement or the transactions contemplated thereby and, a reasonable time prior to furnishing or filing any such correspondence to the SEC, the FINRA, stock exchange or self-regulatory organization, furnish drafts of such correspondence to the Selling Stockholders, their counsel, and the underwriters for review and comment, such review and comment to be conducted with reasonable promptness; and
(xxi) to take all other reasonable steps necessary to effect the registration and disposition of the Registrable Securities contemplated hereby.
(viiib) Use its best efforts in cooperation with the underwritersThe Corporation may require each Selling Stockholder and each underwriter, if any, to list furnish the Corporation in writing such information regarding each Selling Stockholder or underwriter and the distribution of such Registrable Securities on each securities exchange as they the Corporation may from time to time reasonably designate, which securities exchanges shall be acceptable request to complete or amend the Companyinformation required by such registration statement.
(ixc) In Without limiting the terms of Section 5.1(a), in the event that the offering of Registrable Securities is to be made by or through an Underwritten Offeringunderwriter, use its best efforts the Corporation, if requested by the underwriter, shall enter into an underwriting agreement with a managing underwriter or underwriters in connection with such offering containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Corporation contained herein) by an issuer of common stock in underwriting agreements with respect to obtain a “cold comfort” letter from the independent public accountants offerings of common stock for the Company in customary form and covering account of, or on behalf of, such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securitiesissuers.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(bd) Each holder of Registrable Securities will, Selling Stockholder agrees that upon receipt of any notice from the Company Corporation of the happening of any event of the kind described in Section 6.3(a)(viSections 5.6(a)(ix)(C), 5.6(a)(ix)(D)), or 5.6(a)(x), such Selling Stockholder shall forthwith discontinue (in the case of Section 5.6(a)(ix)(D), only in the relevant jurisdiction set forth in such notice) such Selling Stockholder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Stockholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c5.6(a)(x) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCorporation, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior deliver to the effective date of Corporation, at the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.Corporation’s expe
Appears in 3 contracts
Sources: Stockholders Agreement (Apollo Global Management, Inc.), Stockholders Agreement (Harris Joshua), Stockholders Agreement (LDB 2014 LLC)
Registration Procedures. (a) If and whenever the Company is required Whenever any Holder has requested that any shares of Common Stock be registered pursuant to use its best efforts to effect Sections 1.1, 1.2 or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 1.3 hereof, the Company willshall, as expeditiously as reasonably possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement with respect to such Registrable Securities shares and use its reasonable best efforts to cause such registration statement to become and remain effective; effective as soon as reasonably practicable thereafter (provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will shall furnish to the counsel selected by the Requesting Holders for such Holder with copies of all such documents proposed to be filed, which documents will be subject ) and to the timely and reasonable review of cause such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.to comply as to form and content in all material respects with the SEC's forms, rules and regulations;
(iib) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by of not less than 120 days (2 years in the Requesting Holders not exceeding nine (9case of a registration pursuant to Section 1.3 hereof) months and to comply with or until such Holder has completed the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth distribution described in such registration statement., whichever occurs first;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities Holder such number of copies of a such registration statement, each amendment and supplement thereto, the prospectus and included in such registration statement (including each preliminary prospectus for delivery in conformity with the requirements of the Securities Actprospectus), and such other documents as such Person Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(ivd) Use use its best reasonable efforts to register or qualify such Registrable Securities covered by such registration statement shares under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably requestsuch Holder requests (and to maintain such registrations and qualifications effective for a period of 120 days (2 years in the case of a registration pursuant to Section 1.3 hereof) or until such Holder has completed the distribution of such shares, whichever occurs first), and to do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except jurisdictions of such shares (provided that the Company shall will not for any such purpose be required to (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not be required but for the requirements of this Section 6.3(a)(ivsubsection (4), it is not then so qualified, or (Bii) to subject itself to taxation in any such jurisdiction, or (Ciii) file any general consent to take any action which would subject it to general or unlimited service of process in any such jurisdiction); provided that, notwithstanding anything to the contrary in this Agreement with respect to the bearing of expenses, if any such jurisdiction where it is not shall require that expenses incurred in connection with the qualification of such shares in that jurisdiction be borne in part or full by such Holder, then so subject.such Holder shall pay such expenses to the extent required by such jurisdiction;
(ve) Use its best efforts to cause notify such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statementHolder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if that the Company becomes aware that is required to keep the registration statement effective, of the happening of any event as a result of which the prospectus included in any such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, and promptly prepare, file and furnish to the circumstances then existing; use its best efforts to prepare and file an appropriate Holder a supplement or amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiesshares, such prospectus shall will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or or, in light of the circumstances then existing, necessary to make the statements therein not misleading in the light of the circumstances then existing.misleading;
(viif) Otherwise use its best efforts cause all such shares to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwritersbe listed on securities exchanges, if any, on which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all such shares not later than the effective date of such registration statement;
(h) enter into such customary agreements and take all such other actions as such Holder reasonably requests (and subject to list its reasonable approval) in order to expedite or facilitate the disposition of such Registrable Securities on each securities exchange as they may reasonably designateshares;
(i) make available for inspection by such Holder, which securities exchanges shall be acceptable by any underwriter participating in any distribution pursuant to such registration statement, and by any attorney, accountant or other agent retained by such Holder or by any such underwriter, all financial and other records, pertinent corporate documents, and properties (other than confidential intellectual property) of the Company.;
(ixj) In the event if the offering is an Underwritten Offeringunderwritten and at the request of any seller of Registrable Securities, use its best efforts to obtain furnish on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the underwriters and to such seller, stating that such registration statement has become effective under the Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Act (except that such counsel need not express any opinion as to financial statements or other financial or statistical data contained therein), (C) to such other customary matters as reasonably may be requested by counsel for the underwriters or by such seller or its counsel and (D) (not an opinion but as a “cold comfort” negative assurance) that to the best knowledge of such counsel, such registration statement does not contain a material misrepresentation or omission to state a material fact necessary to make the statements therein not misleading; and (ii) a letter dated such date from the independent public accountants for retained by the Company, addressed to the underwriters and to such seller, stating that they are independent public accountants within the meaning of the Act and that, in the opinion of such accountants, the financial statements of the Company included in customary the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form and covering such matters in all material respects with the applicable accounting requirements of the type customarily covered by Act, and such letters letter shall additionally cover such other financial matters (including information as to the Requesting Holders reasonably request in order period ending no more than five business days prior to effect an Underwritten Offering the date of such Registrable Securities.letter) with respect to such registration as such underwriters reasonably may request; and
(xk) Execute and deliver all instruments and documents (including in connection with an Underwritten Offering underwritten offering pursuant to a registration statement filed pursuant to Section 1.1 hereof, enter into an underwriting agreement in customary form) form and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distributioncontaining customary provisions, including any sale pursuant to Rule 144 under the Securities Act, provisions for indemnification of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before underwriters and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreescontribution, if so required requested by the managing any underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement (Micron Technology Foundation Inc), Registration Rights Agreement (Interland Inc), Registration Rights Agreement (Interland Inc /Mn/)
Registration Procedures. Whenever, pursuant to Section 2 or 3 hereof, Holders of Restricted Stock have requested that any Restricted Stock be registered, the Company shall, subject to the provisions of Section 5 hereof, use reasonable efforts to effect the registration and the sale or distribution of such Restricted Stock in accordance with the intended method of disposition thereof as promptly as practicable, and in connection with any such request, the Company shall:
(a) If and whenever the Company is required in connection with a request pursuant to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 2 hereof, the Company will, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC, not later than 45 days after receipt of such a request, a registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and which form shall be available for the sale or distribution of such Restricted Stock in accordance with respect to such Registrable Securities the intended method of distribution thereof, and use its best reasonable efforts to cause such registration statement to become and remain effective; provided that, that if the Company shall furnish to the Holders making such a request a certificate signed by either the chief executive officer or the chief financial officer of the Company stating that in the case good faith judgment of the Company's board of directors, it would be significantly disadvantageous to the Company for such a registration statement to be filed on or before the date filing would otherwise be required hereunder and explaining the reasons therefor, the Company shall have an additional period of not more than 90 days within which to file such registration statement; and, provided for in Section 6.1 or 6.2 hereoffurther, that (i) before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the one counsel selected by the Requesting Holders of a majority of the shares or other units of Restricted Stock covered by such registration statement copies of all such documents proposed to be filed, which documents will be subject to the timely review and reasonable review comment of such counsel; counsel and provided(ii) after the filing of the registration statement, further, that the Company may discontinue shall promptly notify each Selling Holder of Restricted Stock of any registration stop order issued or, to the knowledge of its securities that is being effected the Company, threatened by the SEC and take all reasonable actions to prevent the entry of such stop order or to remove it if entered;
(b) in connection with a request pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare 2 hereof, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than 90 days or such shorter period as may be requested shall terminate when the distribution of all Restricted Stock covered by the Requesting Holders not exceeding nine (9) months such registration statement shall have terminated and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers Selling Holders thereof set forth in such registration statement.;
(iiic) Furnish as soon as reasonably practicable, furnish to each holder Selling Holder, prior to filing a registration statement, copies of Registrable Securities covered by the such registration statement as proposed to be filed and thereafter furnish to each underwriter, if any, of such Registrable Securities Selling Holder such number of copies of a such registration statement, each amendment and supplement thereto, the prospectus and included in such registration statement (including any preliminary prospectus for delivery in conformity with the requirements of the Securities Act, prospectus) and such other documents as such Person Selling Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Restricted Stock owned by such Selling Holder;
(ivd) Use use its best reasonable efforts to register or qualify such Registrable Securities covered by such registration statement Restricted Stock under such other securities or blue sky laws of Canada and of such jurisdictions within the United States and Canada as each seller shall any Selling Holder reasonably request, (in light of such Selling Holder's intended plan of distribution) requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Selling Holder to consummate the disposition in such jurisdictions of the Registrable Securities Restricted Stock owned by such seller in such jurisdictions, except Selling Holder; provided that the Company shall not for any such purpose be required to (Ai) to qualify generally to do business as or file a foreign corporation general consent to service of process in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (Bii) to take any action that would subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(ve) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition promptly notify each Selling Holder of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statementRestricted Stock, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if occurrence of any event known to the Company becomes aware that requiring the preparation of a supplement or amendment to such prospectus included in such registration statementso that, as then in effectthereafter delivered to the purchasers or recipients of such Restricted Stock, includes such prospectus will not contain an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly make available to each Selling Holder any such supplement or amendment;
(f) in light connection with a request pursuant to Section 2 hereof, enter into an underwriting agreement in customary form, the form and substance of such underwriting agreement being subject to the reasonable satisfaction of the circumstances then existingCompany and a majority in interest of the Selling Holders;
(g) make available for inspection by any Selling Holder, any underwriter participating in any sale or distribution pursuant to such registration statement and any attorney, accountant or other agent retained by any such Selling Holder or underwriter (collectively, the "Inspectors") all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers and employees to supply all information reasonably requested for such purpose by any such Inspector in connection with such registration statement; provided that the Company shall have no obligation to permit such access to the Records or its officers or employees in a manner that would unreasonably disrupt the normal conduct of its business operations;
(h) in the event such sale is pursuant to an underwritten offering, use its best reasonable efforts to prepare obtain a comfort letter or letters from the Company's independent public accountants in customary form and file an appropriate amendment or supplement to covering such prospectus and to cause such amendment or supplement to become effectivematters of the type customarily covered by comfort letters as the managing underwriter reasonably requests; and
(i) otherwise use its reasonable efforts to comply with all applicable rules and regulations of the SEC and make available to its security holders, as soon as reasonably practicable, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (including, at the request option of the Company, pursuant to Rule 158 (or any successor provision) under the Securities Act). Upon receipt of any notice from the Company of the occurrence of any event of the kind described in subsection (e) hereof, such sellerSelling Holder shall forthwith discontinue all offerings, deliver a reasonable sales and other dispositions of Restricted Stock pursuant to the registration statement covering such Restricted Stock until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by subsection (e) hereof. In the event the Company shall give any such notice, the Company shall extend the period during which such registration statement shall be maintained effective pursuant to this Agreement (including the period referred to in subsection (b) hereof) by the number of days during the period from and including the date of the giving of such notice pursuant to subsection (b) hereof to and including the first date on which each Selling Holder covered by such registration statement shall have received the copies of an the supplemented or amended prospectus contemplated by subsection (e) hereof. Each Selling Holder shall notify the Company if any event relating to such Selling Holder occurs which would require the preparation of a supplement or supplemental prospectus as may be necessary so that, as thereafter delivered amendment to the purchasers of such Registrable Securities, prospectus so that such prospectus shall will not include 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 in the light of the circumstances then existingmisleading.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement (Alon Israel Oil Company, Ltd.), Registration Rights Agreement (Alon USA Energy, Inc.), Registration Rights Agreement (Alon USA Energy, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in In the case of a each registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements theretoeffected by the Company pursuant to this Agreement, the Company will furnish keep each Holder participating therein advised in writing as to the counsel selected by the Requesting Holders copies initiation of all such documents proposed to be filed, which documents will be subject each registration and as to the timely and reasonable review of such counsel; and provided, further, that completion thereof. At its expense the Company may discontinue any will:
(a) keep such registration of its securities that is being effected pursuant effective for a reasonable period as necessary to Section 6.2 at any time prior permit the Holder or Holders to complete the effective date of distribution described in the registration statement relating thereto.;
(iib) Prepare promptly prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect Act, and to the disposition of all securities covered by keep such registration statement during such effective for that period of time specified in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.Section 7(a) above;
(iiic) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities furnish such number of copies prospectuses and other documents incident thereto as a Holder from time to time may reasonably request;
(d) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a prospectus and preliminary prospectus for delivery in conformity with registration statement, or the requirements lifting of any suspension of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition qualification of any of the Registrable Securities.Securities for sale in any jurisdiction, at the earliest practical moment;
(ive) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement for offer and sale under such other the securities or blue sky Blue Sky laws of such jurisdictions as each seller shall any Holder or underwriter reasonably requestrequires, and do any and all other acts and things which may be reasonably necessary keep such registration or advisable to enable such seller to consummate qualification effective during the disposition of the Registrable Securities owned by such seller period set forth in such jurisdictions, except that the Company shall not for any such purpose be required (ASection 7(a) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.above;
(vf) Use its best efforts to cause such all Registrable Securities covered by such registration statement registrations to be registered listed on each securities exchange, including Nasdaq, on which similar securities issued by the Company are then listed or, if no such listing exists, use reasonable best efforts to list all Registrable Securities on one of the New York Stock Exchange, the American Stock Exchange or qualified Nasdaq; and
(g) cause its accountants to issue to the underwriter, if any, or the Holders, if there is no underwriter, comfort letters and updates thereof, in customary form and covering matters of the type customarily covered in such letters with or approved by respect to underwritten offerings;
(h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other governmental agencies actions as the holders of a majority of the Registrable Securities being sold or authorities the underwriters, if any, reasonably, request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, state securities commissionseffecting a stock split or a combination of shares);
(i) as may be necessary to enable the make available for inspection by any seller or sellers thereof to consummate the disposition of such Registrable Securities, subjectany underwriter participating in any disposition pursuant to such registration statement, howeverand any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to the limitations set forth supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.connection with such registration statement;
(vij) Immediately notify each seller of Registrable Securities Holder, at any time a prospectus covered by such registration statement, at any time when a prospectus relating thereto statement is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that happening of any event of which it has knowledge as a result of which the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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
(viik) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has reasonably requested to be included in such registrationby any Holder.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement (Aris Corp/), Merger Agreement (Aris Corp/), Registration Rights Agreement (Aris Corp/)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities 1933 Act as provided in Section 6.1 or 6.2 hereof2.2 and, as applicable, 2.3, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a SEC the Registration Statement, or amendments thereto, to effect such registration statement with respect to (including such Registrable Securities audited financial statements as may be required by the 1933 Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the SEC, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.2); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare with respect to any registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 15 consecutive Trading Days or an aggregate of 20 Trading Days during each year (each a “Black-Out Period”)) or such period in accordance with time as all of the intended methods securities which are the subject of disposition by the seller or sellers thereof set forth in such registration statement.statement cease to be Registrable Securities (such period, in each case, the “Registration Maintenance Period”). The Company must notify the Investor within twenty four (24) hours prior to any Black-Out Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the 1933 Act, in conformity with the requirements of the Securities 1933 Act, and such other documents documents, as such Person holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities.;
(iv) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. holder of such jurisdictions as each seller Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller holder of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsholder of Registrable Securities, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers U.S. holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately furnish to each holder of Registrable Securities a signed counterpart, addressed to such holder of Registrable Securities, and the underwriters, if any, of an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), such opinion to be in the form filed as Exhibit 5 to the registration statement, and
(vii) notify the Investor and its counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(a) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective;
(b) of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(c) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(d) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(viii) notify each seller holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within 1933 Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.;
(viiix) Otherwise use its commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(x) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.1933 Act and Rule 158 thereunder;
(viiixi) Use its best efforts in cooperation with the underwriters, if any, to list enter into such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders Investor shall reasonably request in writing (at the expense of the requesting or benefiting Investor) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.; and
(xii) use its commercially reasonable best efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Registrable Securities are then listed. The Company may require each holder of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such holder of Registrable Securities and the distribution of such securities as the Company may from time to time reasonably request in writing, including
(a) furnish the information as to any shares of Common Stock or other securities of the Company owned by the holder, the holder’s proposed plan of distribution, any relationship between the holder and the Company and any other information which the Company reasonably requests in connection with the preparation of the registration statement and update such information immediately upon the occurrence of any events or condition which make the information concerning the Seller inaccurate in any material respect;
(b) Each holder of Registrable Securities will, upon receipt of not sell any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of except in the copies of manner set forth in the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).Registration Statement;
(c) If a registration comply with the prospectus delivery requirements and the provisions of Regulation M of the SEC pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not the 1933 Act to the extent that such regulation is applicable to the holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.;
(d) If a registration pursuant to Section 6.1 not sell or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale otherwise transfer or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include distribute any Registrable Securities of if the holder possesses any holder in material nonpublic information concerning the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities ActCompany.
Appears in 3 contracts
Sources: Registration Rights Agreement (Science Dynamics Corp), Registration Rights Agreement (Lounsberry Holdings I Inc), Registration Rights Agreement (Tricell Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts by the provisions of Section 7.1 to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofAct, the Company will, as expeditiously as possible:
(a) subject to the timelines provided in this Agreement, (i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement required by Section 7.1 with respect to such Registrable Securities and use its best commercially reasonable efforts to cause such registration statement to become and remain effective; provided thateffective for the period of the distribution contemplated thereby (determined as herein provided), in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish (ii) promptly provide to the counsel selected by holders of the Requesting Holders Registrable Securities copies of all such documents proposed to be filed, which documents will be subject to filings and Commission letters of comment and notify the timely Sellers (by telecopier and reasonable review of such counsel; and provided, further, by e-mail addresses provided by the Investors) on or before the second (2nd) business days thereafter that the Company may discontinue any receives notice that (A) the Commission has no comments or no further comments on the registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of statement, and (B) the registration statement relating thereto.has been declared effective (failure to timely provide notice as required by this Section 7.2(a) shall be a material breach of the Company’s obligation and an Event of Default as defined in the Notes and a Non-Registration Event as defined in Section 7.4 of this Agreement);
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective until such registration statement has been effective for a period as may be requested by the Requesting Holders not exceeding nine of one (91) months year, and to comply with the provisions of the Securities Act with respect to the disposition of all securities of the Registrable Securities covered by such registration statement during such period in accordance with the Sellers’ intended methods method of disposition by the seller or sellers thereof set forth in such registration statement.statement for such period;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriterSellers, if anyat the Company’s expense, of such Registrable Securities such number of copies of a the registration statement and the prospectus and included therein (including each preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents prospectus) as such Person persons reasonably may reasonably request in order to facilitate the public sale or other their disposition of the Registrable Securities.securities covered by such registration statement, or make them electronically available;
(ivd) Use use its best commercially reasonable efforts to register or qualify such the Registrable Securities covered by such registration statement under such other the securities or “blue sky sky” laws of New York and such jurisdictions as each seller the Sellers shall reasonably requestrequest in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictionsprovided, except however, that the Company shall not for any such purpose be required (A) to qualify generally to do transact business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause such as applicable, list or make available for quotation the Registrable Securities covered by such registration statement to be registered with any securities exchange or qualified with quotation system on which the Common Stock of the Company is then listed or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.quoted;
(vif) Immediately notify each seller the Sellers within two (2) business days of Registrable Securities covered by such registration statement, at the happening of any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if event of which the Company becomes aware that has knowledge as a result of which the prospectus included contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment , or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds which becomes subject to a fiscal year Commission, state or other governmental order suspending the effectiveness of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt any of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).Registrable Securities; and
(cg) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior provide to the effective date Sellers copies of the registration statement filed in connection with such registration, not and amendments thereto at least two (2) days prior to register such securities in connection with such registration, unless such holder has agreed the filing thereof with the Company or the managing underwriter Commission. A Seller’s failure to limit its right under this Section 6.3.
(f) In comment on any registration pursuant statement or other document provided to Section 6.1 an Investor or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers counsel shall be allocated between initial shares and option shares as agreed or, in construed to constitute approval thereof nor the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationaccuracy thereof.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Securities Purchase Agreement (BeesFree, Inc.), Securities Purchase Agreement (BeesFree, Inc.), Securities Purchase Agreement (BeesFree, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 4.1, 4.2 and 4.3, the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of and comment by such counsel; and provided, further, counsel (it being understood that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior counsel to the effective date of the registration statement relating thereto.Selling Holders will conduct its review and provide any comments promptly);
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Selling Holder;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement); ;
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver Selling Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading;
(xi) use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the light offering, marketing or selling of the circumstances then existing.Registrable Securities;
(viixvi) Otherwise have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA;
(xx) otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after all reporting requirements under the close rules and regulations of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Exchange Act.; and
(viiixxii) Use its use reasonable best efforts to take any action requested by the Selling Holders, including any action described in cooperation with the underwritersclauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi4.5(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c4.5(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all give such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.notice, a
Appears in 3 contracts
Sources: Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, Inc.), Shareholder Agreement (Springleaf Holdings, LLC)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Sections 4.1 and 4.2 or any "draw-down" pursuant to Section 6.1 or 6.2 hereof4.1, the Company will, as expeditiously as possiblewill promptly:
(ia) Prepare andcooperate with any underwriters for, and the holders of such Registrable Securities, and will enter into a usual and customary underwriting agreement with respect thereto and take all such other reasonable actions as are necessary or advisable to permit, expedite and facilitate the disposition of such Registrable Securities in the manner contemplated by the related registration statement, and the Company will provide to the holders of such Registrable Securities, any underwriter participating in any event within sixty distribution thereof pursuant to a registration statement, and any attorney, accountant or other agent retained by any holder of Registrable Securities or underwriter, reasonable access to appropriate Company officers and employees to answer questions and to supply financial and other information reasonably requested by any such holders of Registrable Securities, underwriter, attorney, accountant or agent in connection with such registration statement;
(60b) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(iic) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by and, with respect to any "draw-down," to reflect the Requesting Holders not exceeding nine (9) months method of disposition of the Registrable Securities pursuant to such "draw-down," and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities and other securities covered by such registration statement during until the earlier of such period time as all of such Registrable Securities and such other securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or, in the case of a registration pursuant to Section 4.2 hereof, the expiration of sixty (60) days after such registration statement becomes effective; and will furnish, upon request, to each such seller prior to the filing thereof a copy of any amendment or supplement to such registration statement or prospectus and shall not file any such amendment or supplement to which any such seller shall have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder;
(iiid) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, seller of such Registrable Securities and the underwriters (if any) 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 a the prospectus included in such registration statement (including each preliminary prospectus and preliminary prospectus for delivery any summary prospectus), in conformity with the requirements of the Securities Act, such documents, if any, incorporated by reference in such registration statement or prospectus, and such other documents documents, as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(ive) Use promptly, upon written request, deliver to each seller of Registrable Securities and the underwriters (if any), copies of all correspondence between the Commission and (i) the Company, (ii) its counsel, or (iii) its auditors, with respect to the registration statement;
(f) use its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions the states of the United States as each seller shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned covered by such seller in such jurisdictionsregistration statement, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then Subsection (f) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(vg) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in the light of the circumstances then existing; use its best efforts to prepare , which untrue statement or omission requires amendment of the registration statement or supplementation of the prospectus, and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver prepare and furnish to such seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.; provided, however, that each holder of Registrable Securities registered pursuant to such registration statement agrees that he will not sell any Registrable Securities pursuant to such registration statement during the time that the Company is preparing and filing with the Commission a supplement to or an amendment of such prospectus or registration statement;
(viih) Otherwise in the event of the issuance of any stop order suspending the effectiveness of any registration statement or of any order suspending or preventing the use of any prospectus or suspending the qualification of any Registrable Securities for sale in any jurisdiction, use its best efforts to obtain its withdrawal;
(i) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security securities holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first month of the Company first fiscal quarter after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.;
(viiij) Use its best efforts in cooperation with the underwriters, if any, provide and cause to list such be maintained a transfer agent and registrar for all Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to covered by such registration statement from and after a date not later than the Company.effective date of such registration statement; and
(ixk) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily list all Common Stock covered by such letters as registration statement on each securities exchange or securities quotation system on which any of the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder Common Stock is then listed. The Company may require each seller of Registrable Securities will, upon receipt of as to which any notice from registration is being effected to furnish the Company of such information regarding such seller and the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part distribution of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may from time to time reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (as shall be required by law or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, Commission in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationconnection therewith.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Shareholder Agreement (Maxim Group Inc /), Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities 1933 Act as provided in Section 6.1 or 6.2 hereof2.2 and, as applicable, 2.3, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a SEC the Registration Statement, or amendments thereto, to effect such registration statement with respect to (including such Registrable Securities audited financial statements as may be required by the 1933 Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the SEC, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.2); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare with respect to any registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive Trading Days or an aggregate of 20 Trading Days during each year (each a "Black-Out Period")) or such period in accordance with time as all of the intended methods securities which are the subject of disposition by the seller or sellers thereof set forth in such registration statement.statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period");
(iii) Furnish furnish to each holder of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the 1933 Act, in conformity with the requirements of the Securities 1933 Act, and such other documents documents, as such Person holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities.;
(iv) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws as any holder of such jurisdictions as each seller Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller holder of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsholder of Registrable Securities, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each holder of Registrable Securities a signed counterpart, subjectaddressed to such holder of Registrable Securities, howeverand the underwriters, if any, of an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder of Registrable Securities) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(vii) notify the Investor and its counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(A) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the limitations set forth in clauses (A)Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective;
(B) and of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(C) of Section 6.3(a)(iv) hereof.the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(viD) Immediately of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(viii) notify each seller holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within 1933 Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.;
(viiix) Otherwise use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(x) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.1933 Act and Rule 158 thereunder;
(viiixi) Use its best efforts in cooperation with the underwriters, if any, to list enter into such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders Investors shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.; and
(bxii) Each holder of use its commercially reasonable best efforts to list all Registrable Securities will, upon receipt of covered by such registration statement on any notice from the Company of the happening of securities exchange on which any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, are then listed. The Company may require each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not as to effect which any public sale or distribution, including any sale pursuant registration is being effected to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, furnish the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or information regarding such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to and the effective date distribution of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may from time to time reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statementwriting.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Registration Rights Agreement (Global Axcess Corp), Registration Rights Agreement (Kahiki Foods Inc), Registration Rights Agreement (Kahiki Foods Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 2.1, 2.2 or 6.2 hereof2.4, the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities that are not Registrable Securities at any time prior to the effective date of the registration statement relating to such securities; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Selling Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of and comment by such counsel; and provided, further, counsel (it being understood that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior counsel to the effective date of the registration statement relating thereto.Selling Holders will conduct its review and provide any comments promptly);
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 2.1, the expiration of 60 days after such registration statement becomes effective or (ii) in the case of a Piggy-Back Registration pursuant to Section 2.2, the expiration of 60 days after such registration statement becomes effective;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such number of copies of any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable SecuritiesSecurities owned by such Selling Holder; provided, however, that no reports or documents need to be furnished to the extent they have been filed with the Commission and are publicly available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system.
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an underwritten offering, subjectobtain for each underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters, and
(2) a “comfort” letter signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this clause (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) or (ii) such Selling Holder agrees, and causes each of Section 6.3(a)(iv) hereof.the Inspectors to agree, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided further that each of the Selling Holders agree that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(viix) Immediately promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each seller of Registrable Securities covered by such registration statementSelling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; under which they were made, not misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver Selling Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existing.under which they were made, not misleading;
(viixi) Otherwise use its every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to the Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder (or any successor rule or regulation hereafter adopted by the Commission);
(xiii) cooperate with the Selling Holders and any underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiv) have appropriate officers of the Company prepare and participate in customary “road shows” as requested by the managing underwriter(s);
(xv) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants to, participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvi) if requested by any underwriter, agree, and cause the Company, any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xvii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xviii) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xix) otherwise use commercially reasonable efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xx) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after all reporting requirements under the close rules and regulations of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Exchange Act.; and
(viiixxi) Use its best use commercially reasonable efforts to take any action requested by the Selling Holders, including any action described in cooperation with the underwritersclauses (i) through (xx) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited time frame. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested, and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto. Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi2.7(a)(x), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c2.7(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not give such notice, any applicable 60 day period during which such registration statement must remain effective pursuant to this Agreement shall be required extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 2.7(a)(ix) to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that date when all such requested Registrable Securities may then be sold without registration under Rule 144 Selling Holders shall receive such a supplemented or other provision of amended prospectus and such prospectus shall have been filed with the Securities ActCommission.
Appears in 3 contracts
Sources: Registration Rights Agreement (City Office REIT, Inc.), Registration Rights Agreement (City Office REIT, Inc.), Registration Rights Agreement (City Office REIT, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in In the case of a each registration provided for in effected by the Company pursuant to Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto2, the Company will furnish keep each Holder advised in writing as to the counsel selected by the Requesting Holders copies initiation of all such documents proposed to be filed, which documents will be subject each registration and as to the timely and reasonable review of such counsel; and providedcompletion thereof. At its expense, further, that the Company may discontinue any will use its commercially reasonable efforts to:
(a) Keep such registration effective for a period of its securities that ending on the earlier of the date which is being effected pursuant to Section 6.2 at any time prior to one hundred twenty (120) days from the effective date of the registration statement or such time as the Holder or Holders have completed the distribution described in the registration statement relating thereto.; provided, however, that (i) such one hundred twenty (120) day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed basis, subject to compliance with applicable Commission rules, such one hundred twenty (120) day period shall be extended for up to 12 months, if necessary, to keep the registration statement effective until all such Registrable Securities are sold;
(iib) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such for the period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in subsection (a) above; provided further that in connection with any registration on Form S-3 pursuant to Section 2.3 above, the Company agrees to timely file all reports required under the Exchange Act in order to maintain the right to continue to use such Form S-3 and to maintain such registration statement.in effect;
(iiic) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies prospectuses, including any preliminary prospectuses, and other documents incident thereto, including any amendment of a prospectus and preliminary prospectus for delivery in conformity with or supplement to the requirements of the Securities Actprospectus, and such other documents as such Person the Holders may reasonably request in order to facilitate the public sale or other their disposition of the their Registrable Securities.;
(ivd) Use its reasonable best efforts to register or and qualify such Registrable Securities the securities covered by such registration statement under such other securities or blue sky Blue Sky laws of such jurisdictions jurisdiction as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate requested by the disposition of the Registrable Securities owned by such seller in such jurisdictionsHolders; provided, except that the Company shall not for any such purpose be required (A) in connection therewith or as a condition thereto to qualify to do business as or to file a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) general consent to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such states or jurisdictions unless the Company is already subject to service in such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) and except as may be necessary to enable required by the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.Securities Act;
(vie) Immediately notify Notify each seller of Registrable Securities covered by such registration statement, statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act within of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing; use its best efforts to , and following such notification promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiesshares, such prospectus shall 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 or incomplete in the light of the circumstances then existing.;
(viif) Provide a transfer agent and registrar for all Registrable Securities registered pursuant to such registration statement and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;
(g) Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(h) Otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety Commission;
(90i) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds In connection with any underwritten offering pursuant to a fiscal year registration statement filed pursuant to Section 2.1 hereof, enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of the Company)Common Stock, provided such underwriting agreement contains reasonable and customary provisions, and provided further, that each Holder participating in such underwriting shall also enter into and perform its obligations under such an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.agreement; and
(viiij) Use its reasonable best efforts to furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to this Section 2, on the date that such Registrable Securities are delivered to the underwriters for sale in cooperation connection with a registration pursuant to this Section 2, if such securities are being sold through underwriters, (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of Holders requesting registration, addressed to the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable and to the Company.
Holders requesting registration of Registrable Securities, and (ixii) In the event the offering is an Underwritten Offeringa letter dated such date, use its best efforts to obtain a “cold comfort” letter from the independent certified public accountants for of the Company Company, in customary form and covering such matters substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the type customarily covered by such letters as Holders requesting registration, addressed to the Requesting underwriters, if any, and to the Holders reasonably request in order to effect an Underwritten Offering requesting registration of such Registrable Securities.
(xk) Execute Promptly make available for inspection by the selling Holders, any underwriter participating in any disposition pursuant to such registration statement, and deliver any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all instruments financial and documents (including in an Underwritten Offering an underwriting agreement in customary form) other records, pertinent corporate documents, and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company properties of the happening of Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any event of the kind described in Section 6.3(a)(vi)such seller, forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offeringattorney, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may beaccountant, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except agent in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (T2 Biosystems, Inc.), Investors’ Rights Agreement (T2 Biosystems, Inc.), Investors’ Rights Agreement (T2 Biosystems, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 3.1 and 3.2, the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; , and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant such review to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.be conducted with reasonable promptness;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective, or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(3) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(viii) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(ix) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading;
(x) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xiii) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the light offering, marketing or selling of the circumstances then existing.Registrable Securities;
(viixiv) Otherwise if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xv) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xvi) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after all reporting requirements under the close rules and regulations of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Exchange Act. The Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwritersmay require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi3.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c3.6(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not give such notice, any applicable 60-day period during which such registration statement must remain effective pursuant to this Agreement shall be required extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that date when all such requested Registrable Securities may then be sold without registration under Rule 144 Selling Holders shall receive such a supplemented or other provision of amended prospectus and such prospectus shall have been filed with the Securities ActCommission.
Appears in 3 contracts
Sources: Registration Rights Agreement (Fuller Max L), Registration Rights Agreement (Us Xpress Enterprises Inc), Registration Rights Agreement (Us Xpress Enterprises Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act or an Underwritten Offering as provided in Section 6.1 or 6.2 hereof4.1, Section 4.2 and Section 4.3, the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish effective pursuant to the counsel selected by the Requesting Holders copies terms of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counselthis Agreement; and provided, furtherhowever, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto.; provided, further that before filing such registration statement or any amendments thereto, the Company will (A) furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, (B) provide each such Selling Holder and their counsel the opportunity to object to any information pertaining to such Selling Holder or its plan of distribution that is contained in the registration statement (it being understood that each Selling Holder and counsel to such Selling Holder will conduct their review and provide any comments promptly) and (C) make any changes reasonably requested by such Selling Holder or their counsel with respect to such information;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements and “stickers” to such registration statement and the prospectus used in connection therewith and any Filings incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of (x) such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (y) (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of [***] after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of [***] after such registration statement becomes effective or (iii) in the case of a Shelf Registration Statement pursuant to Section 4.3, the last day of the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits or documents incorporated by reference therein), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Selling Holder;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its use best efforts to cause such Registrable Securities to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on The Nasdaq Stock Market or the New York Stock Exchange;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder or underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) either (A), ) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission or any other Governmental Authority for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission or any other Governmental Authority of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) the existence of any conflict between the information contained in any Issuer Free Writing Prospectus and the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver Selling Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading;
(xi) use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least [***], but not more than [***], beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Ordinary Shares or American Depositary Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xv) cause appropriate officers of the Company to prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and at other meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use their reasonable best efforts to cooperate (as reasonably requested by the Selling Holders and the underwriters) in the light offering, marketing or selling of the circumstances then existing.Registrable Securities;
(viixvi) Otherwise cause appropriate officers of the Company and representatives of the Company’s independent registered public accountants to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Equity Securities of the Company;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA;
(xx) otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after all reporting requirements under the close rules and regulations of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Exchange Act.; and
(viiixxii) Use its use reasonable best efforts to take any action requested by the Selling Holders, including any action described in cooperation with the underwritersclauses (i) through (xxi) above to prepare for and facilitate any “over-night deal,” Block Trade Offering or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, upon receipt of any notice from the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the happening Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. No Selling Holder shall be required to make any event of representations, warranties, indemnities or agreements with the kind described in Section 6.3(a)(vi)Company or the underwriters other than the representations, forthwith discontinue disposition warranties, indemnities and agreements regarding such Selling Holder, its ownership of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt being registered on its behalf, its intended method of the copies of the supplemented or amended prospectus contemplated distribution and any other representations, warranties, indemnities and agreements required by Section 6.3(a)(vi)law.
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder In connection with any offering of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale registered pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offeringthis Agreement, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as underwriter, if any (or, if no underwriter, the Company may reasonably request from such holder concerning such holder Selling Holder), to the extent permitted under applicable law and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition subject to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) requirements of the initial shares (or such other maximum amount as the National Association of Securities DealersDepositary, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.unlegended certificates rep
Appears in 2 contracts
Sources: Shareholders’ Rights Agreement (Fortress Investment Group LLC), Shareholders’ Rights Agreement (Fortress Investment Group LLC)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 3.1, 3.2 and 3.3 the Company will, shall as expeditiously as reasonably possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; , and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant such review to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.be conducted with reasonable promptness;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 3.1, the expiration of 60 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 3.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 3.3, the expiration of one year after such registration statement becomes effective;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(4) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.misleading;
(viixi) Otherwise make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holdersSelling Holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company Company’s first full quarter after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiixiii) Use use its reasonable best efforts in cooperation to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the underwriterssellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates; and
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold, in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi3.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c3.6(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not give such notice, any applicable 60 day or one year period during which such registration statement must remain effective pursuant to this Agreement shall be required extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 3.6(a)(ix) to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that date when all such requested Registrable Securities may then be sold without registration under Rule 144 Selling Holders shall receive such a supplemented or other provision of amended prospectus and such prospectus shall have been filed with the Securities ActCommission.
Appears in 2 contracts
Sources: Investor Rights Agreement (GateHouse Media, Inc.), Investor Rights Agreement (GateHouse Media, Inc.)
Registration Procedures. (a) If and whenever Whenever McDonald's shall have made a Notice of Demand, the Company is required to shall use its best all reasonable and diligent efforts to effect or cause the registration and sale of any such Registrable Securities under Shares in accordance with the Securities Act as provided in Section 6.1 intended method or 6.2 hereofmethods of disposition thereof and, pursuant thereto, the Company will, shall as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar 30 days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end receipt of such period if such period ends during the first month or the last month Notice of the Company’s fiscal year)Demand, prepare and file with the Commission Commission, or designate an existing filing as, a registration statement Registration Statement with respect to such Registrable Securities Shares and use its reasonable best efforts to cause such registration statement Registration Statement to become and remain effectiveeffective or otherwise make available for use by the sellers of Registrable Shares a previously filed effective Registration Statement; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that before filing or designating a registration statement Registration Statement or prospectus Prospectus, or filing any amendments amendment thereof or supplements supplement thereto, the Company will shall furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject filed or designated to counsel for the timely and reasonable review sellers of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.Registrable Shares;
(iib) Prepare prepare and file with the Commission such amendments (including pre- and post-effective amendments) amendments of and supplements to such registration statement Registration Statement and the prospectus Prospectus(es) used in connection therewith as may be (i) reasonably requested by McDonald's; (ii) reasonably requested by any seller of Registrable Shares (to the extent such request relates to information relating to such seller); or (iii) necessary to keep such registration statement Registration Statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months Registration Period, and to comply with the provisions of the applicable Securities Act Laws with respect to the sale or other disposition of all securities covered by such registration statement Registration Statement during such period in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such registration statement.Registration Statement;
(iiic) Furnish furnish to each holder the sellers of Registrable Securities covered by Shares or counsel for the registration statement and to each underwriter, if any, of such Registrable Securities sellers such number of copies of a such Registration Statement, the Prospectus(es) included in such Registration Statement (including each preliminary Prospectus), any other prospectus filed under Rule 424 promulgated under the Securities Act relating to the sellers' Registrable Shares, any Issuer Free Writing Prospectuses, and preliminary prospectus for delivery each amendment of and supplement to any of the foregoing, in conformity with the requirements of the Securities Act, and such other documents as such Person any seller may reasonably request in order to facilitate the public sale or other disposition of the its Registrable Securities.Shares under such Registration Statement;
(ivd) Use use its best reasonable and diligent efforts to register or qualify such Registrable Securities covered by such registration statement Shares under such other the securities or blue sky laws of such jurisdictions as each any seller shall of Registrable Shares reasonably requestrequests and keep such registration or qualification in effect for so long as any Registration Statement remains in effect, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities Shares owned by such seller in such jurisdictions, except it; provided that the Company shall not for any such purpose be required to (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or subparagraph; (Bii) to subject itself to taxation in any such jurisdiction, ; or (Ciii) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statementShares, at any time when a prospectus Prospectus relating thereto is required to be delivered under the applicable Securities Act within Laws (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the appropriate period mentioned Securities Act) and when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in Section 6.3(a)(iithe Registration Statement (including any document incorporated by reference therein that has not been superseded or modified), if of the Company becomes aware that happening of any event as a result of which the prospectus Prospectus included in such registration statement, as then in effect, includes Registration Statement contains an untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, at the request of any such seller, the Company shall promptly prepare and furnish to each such seller a reasonable number of copies of an amendment of or supplement to such Prospectus or an Issuer Free Writing Prospectus so that, as thereafter delivered to the purchasers of such Registrable Shares, such Prospectus shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; andtherein, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 under which they were made, not misleading; provided that upon receipt of any notice delivered in accordance with the provisions of this Section 4(e), each seller of Registrable Shares shall be deemed to have agreed that such seller shall forthwith discontinue such disposition of Registrable Shares pursuant to such Registration Statement and Prospectus until the receipt of the copies of the amended or supplemented Prospectus or Issuer Free Writing Prospectus contemplated by this Section 4(e) and, if so directed by the Company, shall deliver to the Company all copies, other than permanent file copies, then existing.in its possession of the Prospectus relating to such Registrable Shares current at the time of receipt of such notice;
(viif) Otherwise cause all such Registrable Shares to be listed, on or prior to the effective date of such Registration Statement, on each securities exchange or national market on which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable Shares not later than the effective date of such Registration Statement;
(h) enter into such customary agreements (including underwriting agreements) and take all such other customary actions as the underwriters, if any, and their counsel reasonably request in order to expedite or facilitate the disposition of such Registrable Shares (including, but not limited to, effecting a stock split or a combination of shares) and, to the extent reasonably requested by the managing underwriters of any underwritten offering, send appropriate officers of the Company to attend "road shows" scheduled in connection with any such registration;
(i) make available for inspection by any seller of Registrable Shares, any underwriter participating in any sale or other disposition pursuant to such Registration Statement, and any legal counsel, accountant or other agent retained by McDonald's or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent registered public accountants (subject to any requesting party executing any document reasonably requested by such accountants to furnish such information) to supply all information reasonably requested by any such seller, underwriter, counsel, accountant or agent in connection with such Registration Statement (including the opportunity to discuss the business of the Company with its officers and the independent registered public accountants who have certified its financial statements) as shall be necessary, in the opinion of their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act; and give the sellers and their counsel, accountant or agent and each underwriter the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or each Prospectus filed with the Commission in connection therewith;
(j) promptly notify the sellers of Registrable Shares and each underwriter, if any:
(i) when such Registration Statement or any Prospectus or Issuer Free Writing Prospectus used in connection therewith has been filed and, with respect to such Registration Statement or any post-effective amendment thereof, when the same has become effective;
(ii) of any written comments from the Commission with respect to any filing referred to in clause (i) and of any written request by the Commission for amendments of or supplements to such Registration Statement, Prospectus or Issuer Free Writing Prospectus;
(iii) of the notification to the Company by the Commission or any other regulatory authority of its initiation of any proceeding with respect to, or of the issuance by the Commission or any other regulatory authority of, any stop order or notice suspending the effectiveness of such Registration Statement; and
(iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and, in the case of clauses (ii), (iii) and (iv), promptly use all reasonable and diligent efforts to, respectively, (A) respond satisfactorily to any such comments and to file promptly any necessary amendments or supplements; (B) prevent the issuance of any stop order or to obtain its best withdrawal if such stop order should be issued; and (C) obtain the withdrawal of any such suspension of qualification;
(k) upon request, furnish to each seller of Registrable Shares a signed counterpart, addressed to such seller (and each underwriter, if any) of:
(i) an opinion of counsel to the Company, dated the effective date of such Registration Statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller (and such underwriter); and
(ii) a "comfort" letter, dated the effective date of such Registration Statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the independent registered public accountants who have certified the Company's financial statements included in such Registration Statement, provided that such seller of Registrable Shares provides such accountants with such certificates as are reasonably and customarily requested by such accountants; in each case covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements and other financial matters, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities;
(l) otherwise use all reasonable and diligent efforts to comply with all applicable rules and regulations of the Commission Securities Laws and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), reasonably practicable an earnings earning statement of the Company which will satisfy satisfying the provisions of Section 11(a) of the Securities Act.Act and Rule 158 promulgated thereunder;
(viiim) Use its best efforts cooperate with each seller, underwriter or agent participating in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering disposition of such Registrable Securities.Shares and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.; and
(xn) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take at least 48 hours prior to the filing or designation of any Registration Statement, the filing of any Prospectus or Issuer Free Writing Prospectus or the filing of any amendment of or supplement to such other actions and obtain such certificates and opinions as Registration Statement, Prospectus or Issuer Free Writing Prospectus, furnish a copy thereof to the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder sellers of Registrable Securities will, upon receipt of any notice Shares or their legal counsel and refrain from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented filing or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securitiesdesignating, as the case may be, any such Registration Statement, Prospectus, Issuer Free Writing Prospectus or securities convertible into amendment thereof or exchangeable or exercisable for any of supplement thereto to which such equity or debt securities, as counsel shall have reasonably objected on the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or grounds that such lesser number as document does not comply in all material respects with the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date requirements of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company Securities Act or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2rules and regulations thereunder, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed orunless, in the absence case of agreementan amendment or supplement, on a pro rata basis among all such holders on in the basis opinion of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, counsel for the Company shall not be required the filing or designation of such amendment or supplement is reasonably necessary to include any Registrable Securities of any holder in the event that protect the Company shall obtain an opinion of its counsel that all from any liabilities under any applicable federal or state law and such requested Registrable Securities may then be sold without registration under Rule 144 filing or other provision of the Securities Actdesignation will not violate applicable laws.
Appears in 2 contracts
Sources: Registration Rights Agreement (Chipotle Mexican Grill Inc), Registration Rights Agreement (Chipotle Mexican Grill Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts by the provisions hereof to effect or cause the registration of any the Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofAct, the Company will, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities securities, promptly as possible respond to any comments received from the Commission and use its best efforts to cause such registration statement to become and remain effective; provided thateffective for the period of the distribution contemplated thereby (determined as herein provided), in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish and promptly provide to the counsel selected by the Requesting Holders Purchaser copies of all such documents proposed to be filed, which documents will be subject to the timely filings and reasonable review Commission letters of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.comment;
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the registration statement and to keep such registration statement during effective until the earlier of: (i) six months after the latest exercise period of the Warrant; (ii) four years after the Closing Date; or (iii) the date on which the Purchaser has disposed of all of the Registrable Securities covered by such period registration statement in accordance with the Purchaser's intended methods method of disposition by the seller or sellers thereof set forth in such registration statement.statement for such period;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities Purchaser such number of copies of a the registration statement and the prospectus and included therein (including each preliminary prospectus for delivery in conformity with prospectus) as the requirements of the Securities Act, and such other documents as such Person Purchaser reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.securities covered by such registration statement;
(ivd) Use use its best commercially reasonable efforts to register or qualify such the Purchaser's Registrable Securities covered by such registration statement under such other the securities or "blue sky sky" laws of such jurisdictions as each seller shall the Purchaser reasonably requestrequests; provided, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictionshowever, except that the Company shall not for any such purpose be required (A) to qualify generally to do transact business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause such list the Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state any securities commissions) as may be necessary to enable exchange on which the seller or sellers thereof to consummate Common Stock of the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.Company is then listed;
(vif) Immediately immediately notify each seller of Registrable Securities covered by such registration statement, the Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act within of the appropriate period mentioned in Section 6.3(a)(ii), if happening of any event of which the Company becomes aware that has knowledge as a result of which the prospectus included contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in make available for inspection by the Purchaser and any Underwritten Offering in addition to any shares of stock (attorney, accountant or other agent retained by the “initial shares”) the underwriters have committed to purchasePurchaser all publicly available, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) non-confidential financial and other records, pertinent corporate documents and properties of the initial shares (or such other maximum amount as Company, and cause the National Association of Securities DealersCompany's officers, Inc. may then permit)directors and employees to supply all publicly available, solely to cover overnon-allotments. Shares of stock proposed to be sold confidential information reasonably requested by the Company and the other sellers shall be allocated between initial shares and option shares as agreed orattorney, in the absence of agreement, on a pro rata basis among all such holders on the basis accountant or agent of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationPurchaser.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Digital Angel Corp), Registration Rights Agreement (Digital Angel Corp)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use its best all commercially reasonable efforts to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in Section 6.1 this Agreement and at such times as customarily occur in registered offerings or 6.2 hereofshelf takedowns, as applicable, the Company will, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given Use all commercially reasonable efforts to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC, a registration statement with respect to such Registrable Securities within the time periods specified herein, and use its best commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable and to remain effective; provided thateffective under the Securities Act until the earlier of such time as all securities covered thereby are no longer Registrable Securities or twenty-four (24) months after such registration statement becomes effective with respect to registrations pursuant to Section 2(a), in the every case of a registration as any such period may be extended pursuant to Section 5(h) or Article 7 hereto (provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the replace a shelf registration statement relating thereto.filed on Form S-1 with a shelf registration statement filed on Form S-3 as and when the Company becomes eligible to file S-3 registration statements as long as such a shelf registration statement filed on Form S-1 remains effective until such time as the replacement shelf registration statement filed on Form S-3 becomes effective);
(iib) Prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a such period of time required by Section 5(a) above, as such period may be extended pursuant to Section 5(h) or Article 7 hereto;
(c) Within a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a registration statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the Holders of the Registrable Securities being sold and to the underwriter or underwriters of an underwritten offering, if applicable, and to their respective counsel; fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the Holders of the Registrable Securities being sold or the underwriter or the underwriters may request; and make such of the representatives of the Company as shall be reasonably requested by the Requesting Holders not exceeding nine of the Registrable Securities being sold or any underwriter available for discussion of such documents;
(9d) months Within a reasonable time prior to the filing of any document which is to be incorporated by reference into a registration statement or a prospectus, provide copies of such document to counsel for the Holders and underwriters; fairly consider such reasonable changes in such document prior to comply or after the filing thereof as counsel for such Holders or such underwriter shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;
(e) Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such the period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in during which any such registration statement.statement is required to be effective;
(iiif) Furnish to each holder any Holder and any underwriter of Registrable Securities covered by the Securities, (i) such number of copies (including manually executed and conformed copies) of such registration statement and to of each underwriteramendment thereof and supplement thereto (including all annexes, if anyappendices, of such Registrable Securities schedules and exhibits), (ii) such number of copies of a the prospectus, used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Actfinal prospectus), and (iii) such number of copies of other documents documents, in each case as such Person Holder or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(ivg) Use its best all commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement under such other the securities or “blue sky sky” laws of such jurisdictions states of the United States as each seller any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably necessary requested by such Holder or advisable to enable such seller underwriter to consummate the offering and disposition of the Registrable Securities owned by such seller in such jurisdictions; provided, except however, that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), wherein it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(vh) Use its best Cooperate with the Holders of the Registrable Securities being sold and the sole underwriter or managing underwriter of an underwritten offering shares, if any, to facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the Holders of the Registrable Securities being sold or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least five days prior to any sale of such shares;
(i) Use, as soon as practicable after the effectiveness of the registration statement, commercially reasonable efforts to cause such the Registrable Securities covered by such registration statement to be registered or qualified with with, or approved by by, such other United States public, governmental agencies or authorities (includingregulatory authorities, without limitationif any, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate required in connection with the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vij) Immediately notify each seller of Registrable Securities Use its commercially reasonable best efforts to list the securities covered by such registration statementstatement on any securities exchange on which any securities of the Company is then listed, at if the listing of such Registrable Securities are then permitted under the applicable rules of such exchange;
(k) Use all reasonable efforts to facilitate the distribution and sale of any time shares of Common Stock to be offered pursuant to this Agreement, including without limitation by making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be requested by the Holders of the Registrable Securities being sold or the lead managing underwriter of an underwritten offering;
(l) Notify each Holder as promptly as practicable and, if requested by any Holder, confirm such notification in writing, (i) when a prospectus relating thereto is required or any prospectus supplement has been filed with the SEC, and, with respect to be delivered under a registration statement or any post-effective amendment thereto, when the Securities Act within same has been declared effective by the appropriate period mentioned in Section 6.3(a)(ii)SEC, if (ii) of the issuance by the SEC of any stop order or the coming to the Company’s attention of the initiation of any proceedings for such or a similar purpose, (iii) of the receipt by the Company becomes aware of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (iv) of the occurrence of any event which requires the making of any changes to a registration statement or related prospectus so that the prospectus included in such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existing; use its best efforts to under which they were made, not misleading (and the Company shall promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver each Holder a reasonable number of copies of an a supplemented or amended or supplemental prospectus as may be necessary so such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 therein, in the light of the circumstances then existing.
under which they are made, not misleading), and (viiv) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement ’s determination that the filing of a post-effective amendment to the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges Registration Statement shall be acceptable to necessary or appropriate. Upon the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in clause (iv) or (v) of this Section 6.3(a)(vi5(l), the Holders shall forthwith discontinue any offer and disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders’ possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the registration statements are required to be effective as set forth under Section 6.3(a)(vi).5(a) shall be extended by the number of days from and including the date such notice is provided, to and including the date when Holders shall have received copies of the corrected prospectus; and
(cm) If a registration pursuant Enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to Section 6.1 expedite or 6.2 hereof involves facilitate the disposition of such Registrable Securities (including, in the case of an Underwritten Offeringunderwritten offering, each holder underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to indemnification and contribution contained herein), and in that regard, deliver to the Holders such documents and certificates as may be reasonably requested by any Holder of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company’s compliance with this Agreement including, without limitation, using all commercially reasonable efforts to cause its independent accountants to deliver to the Company (and to the Holders of Registrable Securities agreesbeing sold in any registration) an accountants’ comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement or, whether or if such letter can not such holder’s be obtained through the exercise of all commercially reasonable efforts, cause its independent accountants to deliver to the Company (and to the Holders of Registrable Securities are being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the Company’s financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 accountants under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent then applicable standards of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or Association of Independent Certified Accountants with respect to such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offeringstatement. In addition, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution Holders of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that being included in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain registration hereunder an opinion of its counsel in substance and scope to that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Actcustomarily delivered to underwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (Graham Packaging Co Inc.), Registration Rights Agreement (Graham Packaging Co Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or Sections 6.1, 6.2 hereof, and 6.3 the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the SEC and thereafter use its reasonable best efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely review and reasonable review comment of such counsel; and provided, further, counsel (it being understood that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior counsel to the effective date of the registration statement relating thereto.Selling Holders will conduct its review and provide any comments promptly);
(ii) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (x) in the case of a Demand Registration pursuant to Section 6.1, the expiration of 60 days after such registration statement becomes effective, (y) in the case of a Piggyback Registration pursuant to Section 6.2, the expiration of 60 days after such registration statement becomes effective or (z) in the case of a Shelf Registration pursuant to Section 6.3, the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and each Free Writing Prospectus utilized in connection therewith and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Selling Holder;
(iv) Use its use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required to (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) file a general consent to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any of Section 6.3(a)(iv) hereof.any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(viD) Immediately when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any Proceeding for such purpose;
(x) notify each seller of Registrable Securities covered by such registration statementSelling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver Selling Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.misleading;
(viixi) Otherwise use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holdersSelling Holders, in each case as soon promptly as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiixiii) Use use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with any Selling Holder and any underwriters and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in cooperation such denominations and registered in such names as the managing underwriter or such Selling Holders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates, if necessary or appropriate;
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the underwritersFINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they the Company may from time to time reasonably designaterequest to complete or amend the information required by such registration statement. Without limiting any of the foregoing, which securities exchanges shall be acceptable to the Company.
(ix) In in the event that the offering of Registrable Securities is to be made by or through an Underwritten Offeringunderwriter, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in customary form) and take underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable SecuritiesSecurities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(b) Each holder of Registrable Securities will, Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi6.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c6.6(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all give such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.notice,
Appears in 2 contracts
Sources: Stockholders Agreement (Moelis & Co), Shareholder Agreement (Moelis & Co)
Registration Procedures. (a) If and whenever the The Company is required obligated to use its best efforts to effect or cause do the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possiblefollowing:
(i) Prepare and, in any event within sixty As soon as is reasonably practicable following the written request (60a “Registration Request”) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end holders of such period if such period ends during the first month or the last month a majority of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be (as defined below) subject to this Agreement, calculated on an as-converted, as-exercised basis (the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant “Majority Holders”) to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for register all or a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, portion of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction whereSEC, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not no event later than ninety (90) calendar days after the close receipt of such Registration Request (the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company“Filing Deadline”), an earnings statement of the Company shall prepare and file with the SEC a registration statement on Form S-3 (the “Initial Shelf Registration Statement”) (unless the Company is not then eligible to register any securities for resale on Form S-3, in which will satisfy case on another appropriate form which provide for resale by the provisions Purchasers in accordance with any reasonable method of Section 11(adistribution elected by the Purchasers) to register with the SEC the resale solely by the Purchasers (except to the extent any registration rights granted prior to the date of this Agreement would otherwise require the inclusion of shares of Common Stock owned by another shareholder therein) on a delayed or continuous basis pursuant to Rule 415 of the Securities Act, including by way of underwritten offering, block sale or other distribution plan designated by the Majority Holders, from time to time, through Nasdaq or the facilities of any national securities exchange on which the Company’s Common Stock is then traded, or in privately negotiated transactions, of (x) the Conversion Shares, (y) the Warrant Shares, including any shares of Common Stock issued or issuable upon the exercise of any additional Warrants issued to the Purchasers pursuant to the terms of this Section 9, and (z) any Common Stock to be issued as (or issuable upon the conversion or exercise of any Preferred Stock, warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the Conversion Shares or the Warrant Shares (collectively, the “Registrable Securities”) specified in such Registration Request.
(viiiii) Use its best efforts Notwithstanding the foregoing, in cooperation with the underwritersevent that (A) the Company is not permitted by the SEC to include all of the Registrable Securities specified in such Registration Request in the Initial Shelf Registration Statement under then applicable rules and regulations (including without limitation Rule 415 promulgated under the Securities Act or any successor rule thereto), if any, to list (B) the inclusion of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall in such Initial Shelf Registration Statement would result in a Purchaser being deemed to be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company underwriter in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition resale of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
Initial Shelf Registration Statement under then applicable rules and regulations (c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to without limitation Rule 144 415 promulgated under the Securities Act, of Act or any Registrable Securities successor rule thereto) or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without C) the consent of the managing underwriter, during a period commencing seven (7) days before Purchasers and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesotherwise agree, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.then:
Appears in 2 contracts
Sources: Note Purchase Agreement (TCV Vii Lp), Note Purchase Agreement (Xata Corp /Mn/)
Registration Procedures. (a) If and whenever In the case of each registration effected by the Company is required pursuant to use Article I or II, the Company will keep each Holder participating in such registration reasonably informed as to the status thereof and, at its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofexpense, the Company will, as expeditiously as possiblepossible to the extent applicable:
(ia) Prepare andprepare and file, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year)as promptly as reasonably practicable, file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, securities in accordance with the case applicable provisions of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.this Agreement;
(iib) Prepare prepare and file file, as promptly as reasonably practicable, with the Commission such amendments (amendments, including post-effective amendments) , and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with (including to permit the intended methods method of disposition by distribution thereof) and as may be necessary to keep the seller or sellers thereof registration statement continuously effective for the period set forth in this Agreement;
(c) furnish to the Holders participating in such registration and to their legal counsel copies of the registration statement proposed to be filed, and provide such Holders and their legal counsel the reasonable opportunity to review and comment on such registration statement.;
(iiid) Furnish furnish to each holder of Registrable Securities covered by the Holders participating in such registration statement and to each underwriter, if any, the underwriters of the securities being registered such Registrable Securities such reasonable number of copies of a the registration statement, preliminary prospectus and preliminary final prospectus for delivery in conformity with as the requirements of the Securities Act, and such other documents as such Person underwriters may reasonably request in order to facilitate the public sale or other disposition offering of the Registrable Securities.such securities;
(ive) Use its best use commercially reasonable efforts to register or qualify such notify each Holder of Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within of the appropriate period mentioned in Section 6.3(a)(ii), if Company’s knowledge of the Company becomes aware that happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in the light of the circumstances then existing; use its best efforts , and, subject to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; andSection 3.1(n), at the request of any such sellerHolder, deliver prepare promptly and furnish to such Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers purchaser of such Registrable Securitiesshares, such prospectus shall 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 or incomplete in the light of the circumstances then existing.;
(viif) Otherwise use its best commercially reasonable efforts to comply register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions in which it is not already qualified;
(g) in the event that the Registrable Securities are being offered in an underwritten public offering, enter into and perform its obligations under an underwriting agreement on customary terms and in accordance with all the applicable rules provisions of this Agreement;
(h) use commercially reasonable efforts to furnish, (i) on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, an opinion and regulations negative assurance letter, dated as of such date, of the Commission and make generally available to its security holderslegal counsel representing the Company for the purposes of such registration, in each case form and substance as soon as practicableis customarily given to underwriters in an underwritten public offering, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds addressed to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities and (ii) on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In date that the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.Securities is priced and on the date that such securities are being sold through underwriters, a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters;
(bi) Each holder in connection with a customary due diligence review, make available during business hours for inspection by the Holders, any underwriter participating in any such disposition of Registrable Securities willSecurities, upon receipt if any, and any counsel or accountants retained by the Holders or underwriter (collectively, the “Offering Persons”), all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all relevant information and participate in customary due diligence sessions in each case reasonably requested by any such representative, underwriter, counsel or accountant in connection with such registration statement, provided, however, each such underwriter shall agree in writing to hold in strict confidence and not to make any disclosure or use of any notice from information requested above (the Company “Requested Information”), unless (1) the disclosure of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant Requested Information is necessary to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented avoid or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If correct a registration pursuant to Section 6.1 misstatement or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included omission in such registration, not to effect any public sale registration or distribution, including any sale pursuant to Rule 144 is otherwise required under the Securities Act, (2) the release of the Requested Information is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, (3) the Requested Information is or has been made generally available to the public other than by disclosure in violation of this Agreement, (4) the Requested Information was within such underwriter’s possession on a non-confidential basis prior to it being furnished to such underwriter by or on behalf of the Company or any of its representatives, provided that the source of such information was not bound by a confidentiality agreement or other contractual, legal or fiduciary obligation of confidentiality with respect to such information or (5) the Requested Information becomes available to such underwriter on a non-confidential basis from a source other than the Company or any of its representatives, provided that such source is not bound by a confidentiality agreement or other contractual, legal or fiduciary obligation of confidentiality with respect to such information. Such underwriter agrees that it shall, upon learning that disclosure of the Requested Information is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Requested Information deemed confidential;
(j) in the event that any broker-dealer underwrites any Registrable Securities or participates as a member of an underwriting syndicate or selling group or “participates in an offering” (within the meaning of the FINRA Rules) thereof, whether as a Holder or as an underwriter, placement, sales agent or broker or dealer in respect thereof, or otherwise, the Company will, upon the reasonable request of such broker-dealer, comply with any reasonable request of such broker-dealer in complying with the FINRA Rules;
(k) notwithstanding any other provision of this Agreement, if the Board of Directors of the Company has determined in good faith that the disclosure necessary for continued use of the prospectus and registration statement by the Holders could be materially detrimental to the Company, the Company shall have the right not to file or not to cause the effectiveness of any security convertible into or exchangeable or exercisable for registration covering any Registrable Securities (other than and to suspend the use of the prospectus and the registration statement covering any Registrable Security for such period of time as part its use would be materially detrimental to the Company by delivering written notice of such Underwritten Offeringsuspension to all Holders listed on the Company’s records; provided, however, that in any 12-month period the Company may exercise the right to such suspension not more than twice. From and after the date of a notice of suspension under this Section 3.1(k), without each Holder agrees not to use the consent prospectus or registration statement until the earlier of (i) notice from the Company that such suspension has been lifted or (ii) the day following the sixtieth (60th) day of suspension within any 12-month period;
(l) cooperate with, and direct the Company’s transfer agent to cooperate with, the Holders and the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesunderwriters, if so any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates or book-entry representing Registrable Securities to be sold together with any other authorizations, certificates, opinions and directions required by the managing underwriter, not transfer agent which authorize and direct the transfer agent to effect any public issue such Registrable Securities without restriction upon sale or distribution of any of its equity or debt securities, as by the case may be, or securities convertible into or exchangeable or exercisable for any holder of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date shares of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.Registrable Securities;
(em) If a registration pursuant use its reasonable best efforts to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company cause all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution shares of Registrable Securities to enable be listed on the Company to include such information in national securities exchange on which the registration statement.Common Stock is then listed; and
(gn) It is understood that in any Underwritten Offering in addition cause its officers to any shares of stock (use their reasonable best efforts to support the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) marketing of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to (including, without limitation, participation in “road shows” and other customary marketing activities, which may be included in such registrationvirtual).
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cryoport, Inc.), Securities Purchase Agreement (Cryoport, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities 1933 Act as provided in Section 6.1 or 6.2 hereof2.2 and, as applicable, 2.3, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a SEC the Registration Statement, or amendments thereto, to effect such registration statement with respect to (including such Registrable Securities audited financial statements as may be required by the 1933 Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the SEC, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.2); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare with respect to any registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 25 consecutive Trading Days or an aggregate of 25 Trading Days during each year (each a "Black-Out Period")) or such period in accordance with time as all of the intended methods securities which are the subject of disposition by the seller or sellers thereof set forth in such registration statement.statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period"). The Company must notify the Investor within twenty four (24) hours prior to any Black-Out Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the 1933 Act, in conformity with the requirements of the Securities 1933 Act, and such other documents documents, as such Person holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities.;
(iv) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. holder of such jurisdictions as each seller Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller holder of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsholder of Registrable Securities, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers U.S. holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately furnish to holder of Registrable Securities at the address provided in the Securities Purchase Agreement a signed counterpart, addressed to such holder of Registrable Securities, and the underwriters, if any, of an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder of Registrable Securities) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(vii) notify each seller the Investor and its counsel promptly at the address provided in the Securities Purchase Agreement and confirm such advice in writing promptly after the Company has knowledge thereof:
(a) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective;
(b) of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(c) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(d) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(viii) provide notice to the holder of Registrable Securities covered by such registration statementstatement at the address provided in the Securities Purchase Agreement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within 1933 Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.; use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(viiix) Otherwise otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form 1933 Act and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.Rule 158 thereunder;
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) enter into such agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders Investors shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.; and
(bxi) Each holder of use its commercially reasonable best efforts to list all Registrable Securities will, upon receipt of covered by such registration statement on any notice from the Company of the happening of securities exchange on which any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, are then listed. The Company may require each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not as to effect which any public sale or distribution, including any sale pursuant registration is being effected to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, furnish the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or information regarding such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to and the effective date distribution of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may from time to time reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statementwriting.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Asia Premium Television Group), Registration Rights Agreement (Asia Premium Television Group)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts by the provisions hereof to effect or cause the registration of any the Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofAct, the Company will, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement with respect to such Registrable Securities securities, promptly as possible respond to any comments received from the SEC and use its best efforts to cause such registration statement to become and remain effective; provided thateffective for the period of the distribution contemplated thereby (determined as herein provided), in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish and promptly provide to the counsel selected by the Requesting Holders Purchaser copies of all such documents proposed to be filed, which documents will be subject to the timely filings and reasonable review SEC letters of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.comment;
(iib) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the registration statement and to keep such registration statement during effective until the earlier of: (i) six months after the latest exercise period of the Warrant; (ii) four years after the Closing Date, or (iii) the date on which the Purchaser has disposed of all of the Registrable Securities covered by such period registration statement in accordance with the Purchaser's intended methods method of disposition by the seller or sellers thereof set forth in such registration statement.statement for such period;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities Purchaser such number of copies of a the registration statement and the prospectus and included therein (including each preliminary prospectus for delivery in conformity with prospectus) as the requirements of the Securities Act, and such other documents as such Person Purchaser reasonably may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.securities covered by such registration statement;
(ivd) Use use its best commercially reasonable efforts to register or qualify such the Purchaser's Registrable Securities covered by such registration statement under such other the securities or "blue sky sky" laws of such jurisdictions as each seller shall reasonably requestthe Purchaser, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictionsprovided, except however, that the Company shall not for any such purpose be required (A) to qualify generally to do transact business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause such list the Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state any securities commissions) as may be necessary to enable exchange on which the seller or sellers thereof to consummate Common Stock of the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.Company is then listed;
(vif) Immediately immediately notify each seller of Registrable Securities covered by such registration statement, the Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if happening of any event of which the Company becomes aware that has knowledge as a result of which the prospectus included contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in make available for inspection by the Purchaser and any Underwritten Offering in addition to any shares of stock (attorney, accountant or other agent retained by the “initial shares”) the underwriters have committed to purchasePurchaser, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) all publicly available, non-confidential financial and other records, pertinent corporate documents and properties of the initial shares (or such other maximum amount as Company, and cause the National Association of Securities DealersCompany's officers, Inc. may then permit)directors and employees to supply all publicly available, solely to cover overnon-allotments. Shares of stock proposed to be sold confidential information reasonably requested by the Company and the other sellers shall be allocated between initial shares and option shares as agreed orattorney, in the absence of agreement, on a pro rata basis among all such holders on the basis accountant or agent of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationPurchaser.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Laurus Master Fund LTD), Registration Rights Agreement (Cycle Country Accessories Corp)
Registration Procedures. (a) If and whenever the Company is required pursuant to use its best efforts this Agreement to effect or cause the registration of any of the Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofAct, the Company will, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement Registration Statement, on a form available to the Company, with respect to such Registrable securities (which filing shall be made (i) as promptly as possible (but in no event later than 30 days after the receipt by the Company of a Request Notice) in the case of a shelf registration if the Company is then eligible to file a Registration Statement on Form S-3 or (ii) as promptly as possible (but in no event later than 60 days after the receipt by the Company of a Request Notice) in the case of any underwritten offering or if the Company is not eligible to file a Registration Statement on Form S-3, provided that in no event will the Company be obligated to file a Registration Statement pursuant to (i) or (ii) prior to the Funding Date pursuant to the Securities and Purchase Agreement. The Company shall thereafter use its best efforts to cause such registration statement Registration Statement to become and remain effective; provided that, effective for the period of the distribution in the case of a registration provided order for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed it to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.Counted;
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a the distribution period to be Counted and as may be requested by the Requesting Holders not exceeding nine (9) months and necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period Registration Statement in accordance with the Holders intended methods method of disposition by the seller or sellers thereof set forth in such registration statement.disposition;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of such Registrable Securities underwriter such number of copies of a the Registration Statement and the prospectus included therein (including each preliminary prospectus and preliminary prospectus for delivery in conformity with each document incorporated by reference therein to the requirements extent then required by the rules and regulations of the Securities Act, and such other documents Commission) as such Person Persons may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities covered by such Registration Statement;
(ivd) Use its if applicable, use best efforts to register or qualify such the Registrable Securities covered by such registration statement Registration Statement under such other the securities or blue sky laws of such jurisdictions as each seller the Selling Holders or, in the case of an underwritten public offering, the managing underwriter, shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except provided that the Company shall will not for any such purpose be required (A) to qualify generally to do transact business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then required to so qualified, qualify or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which that would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(ve) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately immediately notify each seller of Registrable Securities covered by such registration statementSelling Holder and each underwriter, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that happening of any event as a result of which the prospectus included contained in such registration statementRegistration Statement, 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 misleading in the light of the circumstances then existing; use its best efforts to prepare existing and file an appropriate amendment as promptly as practicable amend or supplement to such the prospectus and to cause such amendment or supplement to become effective; and, at take other appropriate action so that the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.;
(viif) Otherwise use its in the case of an underwritten public offering, furnish upon request, (i) on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such Registration Statement, an opinion of counsel for the Company dated as of such date and addressed to the underwriters and to the Selling Holders, stating that such Registration Statement has become effective under the Securities Act and that (A) to the best efforts knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the Registration Statement, the related prospectus, and each amendment or supplement thereof, comply as to comply form in all material respects with all the requirements of the Securities Act and the applicable rules and regulations thereunder of the Commission (except that such counsel need express no opinion as to the financial statements, or any expertized schedule, report or information contained or incorporated therein) and make generally available (C) to its security holderssuch other effects as may reasonably be requested by counsel for the underwriters, and (ii) on the effective date of the Registration Statement and on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such Registration Statement, a letter dated such dates from the independent accountants retained by the Company, addressed to the underwriters and, if available, to the Selling Holders, stating that they are independent public accountants within the meaning of the Securities Act and that, in each case as soon as practicablethe opinion of such accountants, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement financial statements of the Company which will satisfy and the provisions of Section 11(a) schedules thereto that are included or incorporated by reference in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable requirements of the Securities ActAct and the published rules and regulations thereunder, and such letter shall additionally address such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) included in the Registration Statement in respect of which such letter is being given as the underwriters may reasonably request;
(g) make available for inspection by the Selling Holders designated by a majority thereof, any underwriter participating in any distribution pursuant to such Registration Statement, and any attorney, accountant or other agent retained by such representative of the Selling Holders or underwriter (the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement.
(viiih) Use its cause the Registerable Securities to be listed on New York Stock Exchange, American Stock Exchange or on the NASDAQ National Market if the Common Stock is or becomes so listed;
(i) use best efforts to keep effective and maintain for the period of distribution to be Counted, qualification, approval or listing obtained to cover the Registrable Securities as may be necessary for the Selling Holders to dispose thereof and shall from time to time amend or supplement any prospectus used in cooperation connection therewith to the extent necessary in order to comply with applicable law;
(j) use best efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the Selling Holders to consummate the disposition of such Registrable Securities; and
(k) take such other actions as are reasonably requested by the Selling Holders or the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering expedite, facilitate or consummate the disposition of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order . In connection with each registration hereunder with respect to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities willoffering, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant and each Selling Holder agrees to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If enter into a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as written agreement with the managing underwriter shall designate) after or underwriters selected in the effective date of manner herein provided in such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, form and containing such provisions as are customary in the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except business for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date arrangement between underwriters and companies of the registration statement filed in connection with Company's size and investment stature, provided that such registration, agreement shall not contain any such provision applicable to register such securities in connection with such registration, unless such holder has agreed with the Company or the Selling Holders that is inconsistent with the provisions hereof; and further provided, that the time and place of the closing under said agreement shall be as mutually agreed upon among the Company, the Selling Holders and such managing underwriter to limit its right under this Section 6.3.
(f) underwriter. In any connection with each registration pursuant to Section 6.1 or 6.2hereunder, each holder of Registrable Securities requesting to be included in such registration shall Selling Holder will furnish promptly to the Company all in writing such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities with respect to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company itself and the other sellers proposed distribution by it as shall be allocated between initial shares necessary in order to ensure compliance with federal and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationapplicable state securities laws.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Brigham Holdings Ii LLC), Registration Rights Agreement (Enron Capital & Trade Resources Corp)
Registration Procedures. (a) If and whenever the Company is required to file a registration statement with respect to, or to use its best efforts to effect or cause the registration of of, any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, the Company will, will as expeditiously as possible:
(ia) Prepare prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after a request for registration is given to the end of such period if such period ends during the first month or the last month of the Company’s fiscal year)Company pursuant to Section 2.2, file with the Commission SEC a registration statement on an appropriate form with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided thatprovided, however, that the Company may discontinue any registration of Securities which it has initiated for its own account at any time prior to the effective date of the registration statement relating thereto (and, in such event, the case of a registration provided for Company shall pay the Registration Expenses incurred in Section 6.1 or 6.2 hereofconnection therewith); and provided, further, that before filing a registration statement or prospectus prospectus, or any amendments or supplements thereto, the Company will (i) furnish to counsel for the counsel selected sellers of Registrable Securities covered by the Requesting Holders such registration statement copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the sellers of Registrable Securities being sold may request, and (iii) make such of the representatives of the Company as shall be reasonably requested by the sellers of the Registrable Securities being sold available for discussion of such documents;
(b) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may not in excess of two (2) years (which period shall not be requested by applicable in the Requesting Holders not exceeding nine (9case of a shelf registration effected pursuant to a request under Section 2.2(b)) months and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities Securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
; provided that before filing a registration statement or prospectus, or any amendments or supplements thereto, the Company will (iiii) Furnish furnish to each holder counsel for the sellers of Registrable Securities covered by the such registration statement copies of all documents proposed to be filed, which documents will be subject to the review of such counsel, (ii) fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the sellers of Registrable Securities being sold may request, and (iii) make such of the representatives of the Company as shall be reasonably requested by the sellers of the Registrable Securities being sold available for discussion of such documents;
(c) furnish to each underwriter, if any, seller of such Registrable Securities such number of copies of a such registration statement and of each amendment and supplement thereto (in each case including all exhibits filed therewith, including any documents incorporated by reference), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and preliminary prospectus for delivery summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities by such seller;
(ivd) Use use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of in such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.seller;
(ve) Use use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vif) Immediately notify each seller of any such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes Company’s becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any 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; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver prepare and furnish to such seller a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.;
(viig) Otherwise otherwise use its best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security Security holders, in each case as soon as practicable, reasonably practicable (but not later more than ninety eighteen (9018) calendar days months) after the close effective date of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company)registration statement, an earnings statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act.;
(viiih) Use (1) use its best efforts to list such Registrable Securities on any securities exchange on which other Securities of the Company are then listed if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange; and (2) use its best efforts to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including an underwriting agreement in cooperation with customary form), which may include indemnification provisions in favor of underwriters and other Persons in addition to, or in substitution for the indemnification provisions hereof, and take such other actions as sellers of a majority of such Registrable Securities or the underwriters, if any, reasonably request in order to list expedite or facilitate the disposition of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.Securities;
(ixj) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter or letters from the Company’s independent public accountants in customary form and covering matters of the type customarily covered by “cold comfort” letters as the seller or sellers of a majority of such Registrable Securities shall reasonably request;
(k) make available for inspection by any seller of such Registrable Securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller 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 and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) notify counsel for the holders of Registrable Securities included in such registration statement and the managing underwriter or agent, immediately, and confirm the notice in writing: (i) when the registration statement, or any post-effective amendment to the registration statement, shall have become effective, or any supplement to the prospectus or any amendment to any prospectus shall have been filed; (ii) of the receipt of any comments from the SEC; (iii) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for additional information; and (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(m) provide each holder of Registrable Securities included in such registration statement reasonable opportunity to comment on the registration statement, any post-effective amendments to the registration statement, any supplement to the prospectus or any amendment to any prospectus;
(n) make every reasonable effort to prevent the issuance of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;
(o) if requested by the managing underwriter or agent or any holder of Registrable Securities covered by the registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such holder reasonably requests to be included therein, including, with respect to the number of Registrable Securities being sold by such holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
(p) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Securities to be sold under the registration statement, and enable such Securities to be in such denominations and registered in such names as the managing underwriter or agent, if any, or the Holders may request;
(q) use its best efforts to make available the executive officers of the Company to participate with the holders of Registrable Securities and any underwriters in any “road shows” that may be reasonably requested by the holders in connection with distribution of Registrable Securities;
(r) obtain for delivery to the holders of Registrable Securities being registered and to the underwriter or agent an opinion or opinions from counsel for the Company in customary form and covering in form, substance and scope reasonably satisfactory to such matters holders, underwriters or agents and their counsel; and
(s) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering disposition of such Registrable Securities.
(x) Execute Securities and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except their respective counsel in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting filings required to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection made with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3FINRA.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pinnacle Foods Inc.), Registration Rights Agreement (Pinnacle Foods Inc.)
Registration Procedures. (a) If In connection with the Company's registration obligations under Sections 2.1, 2.2 and whenever 2.3 hereof, the Company is required to will use its reasonable best efforts to effect or cause such registration to permit the registration sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 6.1 intended method or 6.2 hereof, the Company will, methods of distribution thereof as expeditiously as possiblereasonably practicable, and pursuant thereto the Company will as expeditiously as reasonably practicable:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement Registration Statement or prospectus Prospectus, or any amendments or supplements theretothereto and in connection therewith, the Company will (x) furnish to the counsel selected underwriters, if any, and to the holders of the Registrable Securities covered by the Requesting Holders such Registration Statement, copies of all such documents proposed prepared to be filed, which documents will be subject to the timely and reasonable review of such counselunderwriters and such holders and their respective counsel and (y) except in the case of a registration under Section 2.3, not file any Registration Statement or Prospectus or amendments or supplements thereto to which the holders of a majority of Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(ii) prepare and, in the case of a Demand Registration, no later than 60 days after a request for a Demand Registration, file with the SEC a Registration Statement relating to the Registrable Securities including all exhibits and financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective under the Securities Act; and provided, furtherhowever, that the Company may discontinue any registration Registration of its securities that is being effected pursuant to are not Registrable Securities (and, under the circumstances specified in 2.1(c) may delay or suspend, and, under the circumstances specified in Section 6.2 2.3(a), may delay or discontinue, Registration of Registrable Securities) at any time prior to the effective date of the registration statement Registration Statement relating thereto.;
(iiiii) Prepare prepare and file with the Commission SEC such amendments (including and post-effective amendments) amendments to such Registration Statement and supplements to such registration statement and the prospectus used in connection therewith Prospectus as may be (x) reasonably requested by the holders of a majority of the participating Registrable Securities, (y) reasonably requested by any participating holder (to the extent such request relates to information relating to such holder), or (z) necessary to keep such registration statement Registration effective for the Shelf Period (in the case of a period Shelf Registration) or the Demand Period (in the case of a Demand Registration);
(iv) notify the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing, as may be requested soon as reasonably practicable after notice thereof is received by the Requesting Holders Company (i) when the Registration Statement or any amendment thereto has been filed or becomes effective, when the Prospectus or any amendment or supplement to the Prospectus has been filed, and, to furnish such selling holders and managing underwriter or underwriters, if any, with copies thereof, (ii) of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary or final Prospectus or the initiation or threatening of any proceedings for such purposes, (iv) if, at any time, the representations and warranties of the Company contemplated by paragraph (xiv) below cease to be true and correct and in all material respects (v) 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;
(v) 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 Registration Statement or the Prospectus included in such Registration Statement (as then in effect) 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 the Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) not exceeding nine (9) months and misleading or, if for any other reason it shall be necessary during such time period to amend or supplement the Registration Statement or the Prospectus in order to comply with the provisions Securities Act and, in either case as promptly as reasonably 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 which will correct such statement or omission or effect such compliance;
(vi) make every reasonable effort to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus or suspending any qualification of the Registrable Securities Act at the earliest possible moment;
(vii) if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an Underwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the disposition number of Registrable Securities being sold to, and the purchase price being paid therefor by, such underwriter or underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in such offering; and make all securities covered 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;
(viii) furnish to each selling holder of Registrable Securities and each managing underwriter, if any, without charge, as many conformed copies as such holder or managing underwriter may reasonably request of the 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);
(ix) deliver to each selling holder of Registrable Securities and each managing underwriter, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such registration statement during such period holder or managing underwriter may reasonably request (it being understood that the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in accordance connection with the intended methods offering and sale of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, Prospectus or any amendment or supplement thereto) and such other documents as such Person selling holder or managing underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities by such holder or underwriter;
(ivx) Use on or prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify qualify, and cooperate with the selling holders of Registrable Securities, the managing underwriter, underwriters or agent, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or blue sky "Blue Sky" laws of each state and other jurisdiction of the United States as any such jurisdictions as each seller shall selling holder, underwriter or agent, if any, or their respective counsel reasonably request, request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller registration or qualification in effect for so long as such Registration Statement remains in effect and so as to consummate permit the disposition continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Registrable Securities owned covered by such seller in such jurisdictions, except the Registration Statement; provided that the Company shall will not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to taxation or general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(vxi) Use cooperate with the selling holders of Registrable Securities and the managing underwriter, underwriters or agent, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(xii) use its reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) 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;
(xiii) not later than the effective date of the applicable Registration Statement, subject, however, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company;
(xiv) make such representations and warranties to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller holders of Registrable Securities covered by such registration statementbeing registered, at any time when a prospectus relating thereto is required to be delivered under and the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii)underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in secondary underwritten public offerings;
(xv) enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement holders of at least a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request majority of any such sellerRegistrable Securities being sold or the managing underwriter or agent, deliver a reasonable number of copies of an amended if any, reasonably request in order to expedite or supplemental prospectus as may be necessary so that, as thereafter delivered to facilitate the purchasers registration and disposition of such Registrable Securities, such prospectus shall 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.;
(viixvi) Otherwise use its best efforts obtain for delivery to comply with all applicable rules the holders of Registrable Securities being registered and regulations of to the Commission and make generally available to its security holdersunderwriter, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwritersunderwriters or agent, if any, to list such Registrable Securities on each securities exchange as they may reasonably designatean opinion or opinions from counsel for the Company dated the effective date of the Registration Statement and, which securities exchanges shall be acceptable to the Company.
(ix) In in the event the offering is of an Underwritten Offering, use its best efforts brought down to the date of execution of the underwriting agreement (if different from such effective date) and to the closing under the underwriting agreement, in customary form, scope and substance, which counsel and opinions shall be reasonably satisfactory to such holders, underwriters or agents and their respective counsel;
(xvii) obtain for delivery to the Company and the underwriter, underwriters or agent, if any, with copies to the holders of Registrable Securities (unless precluded by applicable accounting rules), a “cold comfort” comfort letter from the Company's independent certified public accountants for the Company in customary form and covering such matters of the type customarily covered by such cold comfort letters as the Requesting Holders managing underwriter or underwriters reasonably request request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement;
(xviii) cooperate with each seller of Registrable Securities and each underwriter or agent, if any, participating in order to effect an Underwritten Offering the disposition of such Registrable Securities.Securities and their respective counsel in connection with any filings required to be made with the NASD;
(xxix) Execute use its reasonable best efforts to comply with all applicable rules and deliver regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable (but not more than fifteen months) after the effective date of the Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;
(xx) provide and cause to be maintained a transfer agent and registrar for all instruments Registrable Securities covered by such Registration Statement from and documents after a date not later than the effective date of such Registration Statement;
(including in an Underwritten Offering an underwriting agreement in customary formxxi) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which any of the Company's securities are then listed or quoted and take such other actions on each inter-dealer quotation system on which any of the Company's securities are then quoted;
(xxii) make available upon reasonable notice at reasonable times and obtain such certificates and opinions as for reasonable periods for inspection by a representative appointed by a majority of the Requesting Holders reasonably request in order to effect an underwritten public offering sellers of such Registrable SecuritiesSecurities covered by such Registration Statement, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such sellers 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 and employees and 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 reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility (subject to each party referred to in this clause (v) entering into customary confidentiality agreements in a form reasonably acceptable to the Company);
(xxiii) cause the senior executive officers of the Company to participate in the customary "road show" presentations that may be reasonably requested by the holders or the managing underwriter in any Underwritten Offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; and
(xxiv) promptly, after the issuance of an earnings release or upon the request of a holder, prepare a current report on Form 8-K with respect to such earnings release or a matter of disclosure as requested by such holder and file such Form 8-K with the SEC.
(b) The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such holder and its ownership of Registrable Securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees to furnish such information to the Company and to cooperate with the Company as necessary to enable the Company to comply with the provisions of this Agreement.
(c) Each holder of Registrable Securities willagrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi)2.5(a)(v) hereof, such holder will forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities Registration Statement until such holder’s 's receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by Section 6.3(a)(vi).
(c2.5(a)(v) If a registration pursuant to Section 6.1 hereof, or 6.2 hereof involves an Underwritten Offeringuntil it is advised in writing by the Company that the use of the Prospectus may be resumed, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, and has received copies of any Registrable Securities additional or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering)supplemental filings that are incorporated by reference in the Prospectus, without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish will deliver to the Company (at the Company's expense) all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchasecopies, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.than permanent file copies th
Appears in 2 contracts
Sources: Registration Rights Agreement (TPG Partners Ii Lp), Registration Rights Agreement (Oxford Health Plans Inc)
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or Sections 6.1, 6.2 hereof, and 6.3 the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the SEC and thereafter use its reasonable best efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely review and reasonable review comment of such counsel; and provided, further, counsel (it being understood that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior counsel to the effective date of the registration statement relating thereto.Selling Holders will conduct its review and provide any comments promptly);
(ii) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (x) in the case of a Demand Registration pursuant to Section 6.1, the expiration of sixty (60) days after such registration statement becomes effective, (y) in the case of a Piggyback Registration pursuant to Section 6.2, the expiration of sixty (60) days after such registration statement becomes effective or (z) in the case of a Shelf Registration pursuant to Section 6.3, the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and each Free Writing Prospectus utilized in connection therewith and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Selling Holder;
(iv) Use its use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required to (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) file a general consent to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any of Section 6.3(a)(iv) hereof.any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(viD) Immediately when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any Proceeding for such purpose;
(x) notify each seller of Registrable Securities covered by such registration statementSelling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver Selling Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.misleading;
(viixi) Otherwise use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holdersSelling Holders, in each case as soon promptly as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiixiii) Use use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with any Selling Holder and any underwriters and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in cooperation such denominations and registered in such names as the managing underwriter or such Selling Holders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates, if necessary or appropriate;
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the underwritersFINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they the Company may from time to time reasonably designaterequest to complete or amend the information required by such registration statement. Without limiting any of the foregoing, which securities exchanges shall be acceptable to the Company.
(ix) In in the event that the offering of Registrable Securities is to be made by or through an Underwritten Offeringunderwriter, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in customary form) and take underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable SecuritiesSecurities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(b) Each holder of Registrable Securities will, Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi6.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c6.6(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.event
Appears in 2 contracts
Sources: Stockholders Agreement (Moelis & Co), Shareholder Agreements (Moelis & Co)
Registration Procedures. (a) If and whenever the Company Stratos is required by the provisions of this Agreement to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, the Company willStratos shall, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement with respect to on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which form (i) shall be selected by Stratos and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, and Stratos shall use its best efforts to cause such registration statement to become and remain effective; provided thateffective (PROVIDED, in the case of a registration provided for in Section 6.1 or 6.2 hereofHOWEVER, that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company or comparable statements under securities or blue sky laws of any jurisdiction, Stratos will furnish to one counsel for the counsel Holders participating in the planned offering (selected by the Requesting Holders Initiating Holder, in the case of a registration pursuant to Section 2.1, and selected by the Major Holder, in the case of a registration pursuant to Section 2.2) and the underwriters, if any, copies of all such documents proposed to be filedfiled (including all exhibits thereto), which documents will be subject to the timely reasonable review and reasonable review comment of such counsel; , and provided, further, that the Company may discontinue Stratos shall not file any registration statement or amendment thereto or any prospectus or supplement thereto to which the Holders of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date a majority of the Registrable Securities covered by such registration statement relating thereto.or the underwriters, if any, shall reasonably object in writing);
(iib) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for such period (which shall not be required to exceed one hundred eighty (180) days in the case of a period registration pursuant to Section 2.1 or one hundred twenty (120) days in the case of a registration pursuant to Section 2.2) as may be requested by the Requesting Holders not exceeding nine (9) months any seller of Registrable Securities pursuant to such registration statement shall request and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.;
(iiic) Furnish furnish, without charge, to each holder seller of such Registrable Securities covered by the registration statement and to each underwriter, if any, of the securities covered by such Registrable Securities registration statement such number of copies of a such registration statement, each amendment and supplement thereto (in each case including all exhibits), and the prospectus and included in such registration statement (including each preliminary prospectus for delivery prospectus) in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller (Stratos hereby consenting to the use in accordance with all applicable law of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) by each such seller of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(ivd) Use use its best efforts to register or qualify such the Registrable Securities covered by such registration statement under such other securities or "blue sky sky" laws of such jurisdictions as each seller any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller sellers or underwriter, if any, to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company in no event shall not for any such purpose Stratos be required (A) to qualify to do business as a foreign corporation in any jurisdiction wherewhere it would not, but for the requirements of this Section 6.3(a)(ivparagraph (d), it is not then be required to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause such promptly notify each Holder selling Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities and each managing underwriter, if any: (including, without limitation, state securities commissionsi) as may be necessary to enable when the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time pre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement has been filed and, with respect to the registration statement or any post-effective amendment, when a the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus relating related thereto is required or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; (iv) of the receipt by Stratos of any notification with respect to be delivered the suspension of the qualification of any Registrable Securities for sale under the Securities Act within securities or blue sky laws of any jurisdiction or the appropriate period mentioned in Section 6.3(a)(ii), if initiation of any proceeding for such purpose; (v) of the Company existence of any fact of which Stratos becomes aware that which results in the prospectus included in such registration statement, as then in effect, includes the prospectus related thereto or any document incorporated therein by reference containing an untrue statement of a material fact or omits omitting to state any a material fact required to be stated therein or necessary to make the statements any statement therein not misleading misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in light of all material respects; AND, if the circumstances then existing; use its best efforts notification relates to an event described in clause (v), Stratos shall promptly prepare and file an appropriate amendment or supplement furnish to each such prospectus seller and to cause such amendment or supplement to become effective; andeach underwriter, at the request of any such sellerif any, deliver a reasonable number of copies of an a prospectus supplemented or amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.under which they were made not misleading;
(viif) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days reasonably practicable after the close effective date of the period covered thereby registration statement (one hundred eighty and in any event within seventeen (18017) calendar days in case the period covered corresponds to a fiscal year of the Companymonths thereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of Stratos' first calendar quarter after the effective date of the Company registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiii) Use its best efforts in cooperation with the underwriters, if any, to list cause all such Registrable Securities covered by such registration statement to be listed on each the principal trading market or securities exchange on which similar securities issued by Stratos are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such trading market or exchange, or
(ii) if no similar securities are then so listed, to either cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as they a Nasdaq National Market "national market system security" within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, take all actions that may be required by Stratos as the issuer of such Registrable Securities in order to facilitate the managing underwriter's arranging for the registration of at least two market makers as such with respect to such shares with the NASD;
(h) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if applicable, an underwriting agreement) and take such other actions as the Holders of a majority of the Registrable Securities or the Major Holder participating in such offering shall reasonably designate, which securities exchanges request in order to expedite or facilitate the disposition of such Registrable Securities. The Holders of the Registrable Securities that are to be distributed by such underwriters shall be acceptable parties to such underwriting agreement and may, at their option, require that Stratos make to and for the Company.benefit of such Holders the representations, warranties and covenants of Stratos that are being made to and for the benefit of such underwriters and that are of the type customarily provided to institutional investors in secondary offerings;
(ixj) In the event the offering is an Underwritten Offering, use its best efforts to obtain an opinion from Stratos' counsel and a “"cold comfort” " letter from the Stratos' independent public accountants for the Company in customary form and covering such matters of the type as are customarily covered by such opinions and "cold comfort" letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any, and to the Major Holder participating in such offering, and furnish to each Holder participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such Holder or underwriter;
(k) deliver promptly to each Holder participating in the offering and each underwriter, if any, copies of all correspondence between the SEC and Stratos, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement, other than those portions of any such memoranda which contain information subject to attorney-client privilege with respect to Stratos, and, upon receipt of such confidentiality agreements as Stratos may reasonably request, make reasonably available for inspection by any seller of such Registrable Securities covered by such registration statement, by any underwriter, if any, participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of Stratos, and cause all of Stratos' officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) use its best efforts to obtain the Requesting withdrawal of any order suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and otherwise provide reasonable assistance to the underwriters (taking into account the needs of Stratos' businesses and the requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;
(o) promptly prior to the filing of any document that is to be incorporated by reference into the registration statement or the prospectus (after the initial filing of such registration statement), provide copies of such document to counsel for the selling holders of Registrable Securities and to each managing underwriter, if any, and make Stratos' representatives reasonably available for discussion of such document and make such changes in such document concerning the selling holders prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request;
(p) furnish to the Major Holder participating in the offering and the managing underwriter, without charge, at least one (1) signed copy, and to each other Holder participating in the offering, without charge, at least one (1) photocopy of a signed copy, of the registration statement and any post-effective amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(q) cooperate with the selling Holders reasonably request of Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, 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 three (3) 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;
(r) take all such other commercially reasonable actions as are necessary or advisable in order to effect an Underwritten Offering expedite or facilitate the disposition of such Registrable Securities.; and
(xs) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take no direct or indirect action prohibited by Regulation M under the Exchange Act; PROVIDED, HOWEVER, that to the extent that any prohibition is applicable to Stratos, Stratos will take such other actions and obtain action as is necessary to make any such certificates and opinions prohibition inapplicable. Stratos may require as the Requesting Holders reasonably request in order a condition precedent to effect an underwritten public offering of such Registrable Securities.
(b) Each holder Stratos' obligations under this Section 2.4 that each seller of Registrable Securities willas to which any registration is being effected furnish Stratos such information regarding such seller and the distribution of such securities as Stratos may from time to time reasonably request; PROVIDED, HOWEVER, that such information is necessary for Stratos to consummate such registration and shall be used only in connection with such registration. Each Holder of Registrable Securities agrees that upon receipt of any notice from the Company Stratos of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 6.3(a)(vi)2.4, forthwith such Holder will discontinue such Holder's disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s Holder's receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 6.3(a)(vi).
2.4 and, if so directed by Stratos, will deliver to Stratos (cat Stratos' expense) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offeringall copies, each holder other than permanent file copies, then in such Holder's possession of the prospectus covering such Registrable Securities agreesthat was in effect at the time of receipt of such notice. In the event Stratos shall give any such notice, whether or not the applicable period mentioned in paragraph (b) of this Section 2.4 shall be extended by the number of days during such holder’s Registrable Securities are included in period from and including the date of the giving of such registration, not notice to effect any public sale or distribution, and including any sale pursuant to Rule 144 under the Securities Act, date when each seller of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of covered by such Underwritten Offering), without registration statement shall have received the consent copies of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (supplemented or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required amended prospectus contemplated by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
paragraph (e) of this Section 2.4. If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may electstatement or comparable statement under "blue sky" laws refers to any Holder by name or otherwise as the Holder of any securities of Stratos, then such Holder shall have the right to require (i) the insertion therein of language, in writingform and substance reasonably satisfactory to such Holder and Stratos, prior to the effective date effect that the holding by such Holder of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.no
Appears in 2 contracts
Sources: Registration Rights Agreement (Stratos Lightwave Inc), Registration Rights Agreement (Stratos Lightwave Inc)
Registration Procedures. (a) If and whenever the Company is Whenever required under this Agreement to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSecurities, the Company willwill use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall, as expeditiously as reasonably possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), and file with the Commission a registration statement Registration Statement with respect to such Registrable Securities and use its best efforts to cause such registration statement Registration Statement to become and remain effective; provided that, in effective until the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.distribution thereof has been completed;
(ii) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iiib) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of Holders such Registrable Securities such number numbers of copies of a prospectus and prospectus, including a preliminary prospectus for delivery prospectus, in conformity with the requirements of the Securities Act, and such other documents as such Person they may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by them;
(c) Notify the selling Holders of Registrable Securities promptly (but in any event within two (2) business days), and confirm such seller notice in such jurisdictionswriting (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, except and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with the sales of Registrable Securities, the Company becomes aware that the representations and warranties of the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation contained in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities agreement (including, without limitation, state securities commissionsany underwriting agreement) as may contemplated in Section 8(g) below cease to be necessary to enable true and correct in any material respect, (iv) of the seller or sellers thereof to consummate receipt by the disposition Company of such Registrable Securities, subject, however, any notification with respect to the limitations set forth in clauses (A), (B) and (C) suspension of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities covered by such registration statementfor offer or sale in any jurisdiction, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), or (v) if the Company becomes aware of the happening of any event that the prospectus included makes any statement made in such registration statementRegistration Statement or related prospectus or document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, as then prospectus or documents so that, in effectthe case of such Registration Statement, includes an it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances then existing; use its best efforts under which they were made, not misleading;
(d) Upon the occurrence of any event contemplated by Section 8(c) above, as promptly as practicable, prepare a supplement or post-effective amendment to prepare and file an appropriate amendment the Registration Statement or a supplement to such the related prospectus and or any document incorporated or deemed to cause such amendment be incorporated therein by reference, or supplement to become effective; and, at the request of file any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus shall will not include 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 therein, in the light of the circumstances then existing.under which they were made, not misleading;
(viie) Otherwise As promptly as practicable after the Exchange Act Registration Statement or the Securities Act Registration Statement, as applicable, shall have been declared effective under the Securities Act, use its best commercially reasonable efforts to comply with all applicable rules and regulations of cause the Commission and make generally available Shares to its security holdersbe authorized to be quoted and/or listed (to the extent applicable) on the American Stock Exchange, the New York Stock Exchange, the NASDAQ National Market (or, in each case case, a successor thereto) or a similarly recognized trading platform, if the Shares so qualify;
(f) Use its commercially reasonable efforts to register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “Blue Sky” laws of such jurisdictions as soon as practicable, but not later than ninety (90) calendar days after shall be reasonably appropriate for the close distribution of the period Registrable Securities covered thereby by the Registration Statement; provided that the Company shall not be required in connection therewith or as a condition thereto, to qualify to do business or to file a general consent to service of process in any such states or jurisdictions; and provided, further that (one hundred eighty (180anything in this Agreement to the contrary notwithstanding with respect to the bearing of expenses) calendar days if any jurisdiction in case which the period covered corresponds to a fiscal year Registrable Securities shall be qualified requires that expenses incurred in connection with the qualification of the Company)securities in that jurisdiction be borne by selling shareholders, then such expenses shall be payable by the Holders of such Registrable Securities pro rata to the extent required by any jurisdiction;
(g) In the case of any underwritten offering, enter into an earnings statement underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all other actions as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or disposition of the Registrable Securities, and in such connection, (i) make such representations and warranties to the underwriters, with respect to the business of the Company which will satisfy and its subsidiaries, and the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwritersRegistration Statement, prospectus and documents, if any, incorporated or deemed to list such Registrable Securities on be incorporated by reference therein, in each securities exchange case, in form, substance and scope as they may reasonably designateare customarily made by issuers to underwriters in underwritten offerings, and confirm the same if and when requested, (ii) obtain opinions of counsel to the Company and updates thereof (which securities exchanges opinions (in form, scope and substance) shall be acceptable reasonably satisfactory to the Company.
managing underwriters), addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings, (ixiii) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter letters and updates thereof from the independent public certified accountants for of the Company (and, if necessary, any other independent certified public accounts of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering such matters of the type customarily covered by such in “cold comfort” letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
connection with underwritten offerings and (xiv) Execute and deliver all instruments and documents (including in an Underwritten Offering an if any underwriting agreement in customary form) is entered into, the same shall contain indemnification provisions and take such other actions and obtain such certificates and opinions as procedures no less favorable to the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described than those set forth in Section 6.3(a)(vi), forthwith discontinue disposition 12 hereof (or such other provisions and procedures acceptable to Holders of a majority of the Registrable Securities covered by such Registration Statement and the managing underwriters or agents). The above actions shall be taken at each closing under such underwriting agreement, or as and to the extent required thereunder;
(h) Make available for inspection by any selling Holder of Registrable Securities, by any underwriter participating in any disposition to be effected pursuant to the registration statement covering such Registrable Securities until Registration Statement and by any attorney, accountant or other agent retained by any such holder’s receipt selling Holder or any such underwriter, all pertinent financial and other records and pertinent corporate documents and properties of the copies Company, and cause all of the supplemented or amended prospectus contemplated Company’s officers, directors and employees to supply all information reasonably requested by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offeringany such selling Holder, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (attorney, accountant or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed agent in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.Registration Statement; and
(fi) In any registration pursuant Use every reasonable effort to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to prevent the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities issuance of any holder in stop order suspending the event that effectiveness of such Registration Statement or of any order preventing or suspending the Company shall use of any preliminary prospectus and, if any such order is issued, to obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Actlifting thereof at the earliest reasonable time.
Appears in 2 contracts
Sources: Investor Rights Agreement (Research Pharmaceutical Services, Inc.), Investor Rights Agreement (Research Pharmaceutical Services, Inc.)
Registration Procedures. (a) If and whenever In the case of each Registration effected by ----------------------- the Company is required pursuant to Section 2, the Company will keep each Holder participating therein advised in writing as to the initiation of each Registration and as to the completion thereof. At its expense (except as otherwise provided in Section 2.4 above) the Company will use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possibleto:
(ia) Prepare andkeep such registration, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (qualification or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected compliance pursuant to Section 6.2 at any time prior to Sections 2.1, 2.2 or 2.3 effective for a period of 180 days or until the effective date of Holder or Holders have completed the distribution described in the registration statement relating thereto., whichever first occurs;
(iib) Prepare furnish such number of prospectuses and other documents incident thereto as a Holder from time to time may reasonably request;
(c) prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such within the time period referred to in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.Section 2.5(a);
(iiid) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller Holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto covered by such registration statement is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that happening of any event as a result of which the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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
(viie) Otherwise use its best efforts furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to comply this Section 2, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with all applicable rules and regulations a registration pursuant to this Section 2, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated such date, of the Commission and make generally available to its security holderscounsel representing the Company for the purposes of such registration, in each case form and substance as soon as practicableis customarily given to underwriters in an underwritten public offering, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds addressed to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable and to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s whose Registrable Securities are included in such registrationregistration statement and (ii) if such securities are being sold through underwriters, not to effect any a letter dated such date, from the independent certified public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent accountants of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may electCompany, in writingform and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, prior addressed to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3underwriters.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Investor Rights Agreement (Network Access Solutions Corp), Investor Rights Agreement (Network Access Solutions Corp)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities 1933 Act as provided in Section 6.1 or 6.2 hereof2.2 and, as applicable, 2.3, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a SEC the Registration Statement, or amendments thereto, to effect such registration statement with respect to (including such Registrable Securities audited financial statements as may be required by the 1933 Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the SEC, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.2); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare with respect to any registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 25 consecutive Trading Days or an aggregate of 25 Trading Days during each year (each a "Black-Out Period")) or such period in accordance with time as all of the intended methods securities which are the subject of disposition by the seller or sellers thereof set forth in such registration statement.statement cease to be Registrable Securities (such period, in each case, the "Registration Maintenance Period"). The Company must notify the Investor within twenty four (24) hours prior to any Black-Out Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the 1933 Act, in conformity with the requirements of the Securities 1933 Act, and such other documents documents, as such Person holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities.;
(iv) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. holder of such jurisdictions as each seller Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller holder of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsholder of Registrable Securities, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers U.S. holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately furnish to each holder of Registrable Securities a signed counterpart, addressed to such holder of Registrable Securities, and the underwriters, if any, of an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder of Registrable Securities) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(vii) notify the Investor and its counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(a) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective;
(b) of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(c) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(d) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(viii) notify each seller holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within 1933 Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.; use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(viiix) Otherwise otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form 1933 Act and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.Rule 158 thereunder;
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) enter into such agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders Investors shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.; and
(bxi) Each holder of use its commercially reasonable best efforts to list all Registrable Securities will, upon receipt of covered by such registration statement on any notice from the Company of the happening of securities exchange on which any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, are then listed. The Company may require each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not as to effect which any public sale or distribution, including any sale pursuant registration is being effected to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, furnish the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or information regarding such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to and the effective date distribution of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may from time to time reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statementwriting.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Asia Premium Television Group), Registration Rights Agreement (Broadcast International Inc)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use its best commercially reasonable efforts to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in Section 6.1 this Agreement, and at such times as customarily occur in registered offerings or 6.2 hereofshelf takedowns, as applicable, the Company will, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given Use all commercially reasonable efforts to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC, a registration statement with respect to such Registrable Securities within the time periods specified herein, and use its best all commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable and to remain effective; provided thateffective under the Securities Act until the earlier of such time as all securities covered thereby are no longer Registrable Securities or twenty-four (24) months after such registration statement becomes effective with respect to registrations pursuant to Section 2(a), in the every case of a registration as any such period may be extended pursuant to Section 5(l) or Article 7 hereto (provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the replace a shelf registration statement relating thereto.filed on Form S-1 with a shelf registration statement filed on Form S-3 as and when the Company becomes eligible to file S-3 registration statements as long as such a shelf registration statement filed on Form S-1 remains effective until such time as the replacement shelf registration statement filed on Form S-3 becomes effective);
(iib) Prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a such period of time required by Section 5(a) above, as such period may be extended pursuant to Section 5(l) or Article 7 hereto;
(c) Within a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a registration statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the Holders of the Registrable Securities being sold and to the underwriter or underwriters of an underwritten offering, if applicable, and to their respective counsel; fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the Holders of the Registrable Securities being sold or the underwriter or the underwriters may request; and make such of the representatives of the Company as shall be reasonably requested by the Requesting Holders not exceeding nine of the Registrable Securities being sold or any underwriter available for discussion of such documents;
(9d) months Within a reasonable time prior to the filing of any document which is to be incorporated by reference into a registration statement or a prospectus, provide copies of such document to counsel for the Holders and underwriters; fairly consider such reasonable changes in such document prior to comply or after the filing thereof as counsel for such Holders or such underwriter shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;
(e) Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such the period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in during which any such registration statement.statement is required to be effective;
(iiif) Furnish to each holder any Holder and any underwriter of Registrable Securities covered by the Securities, without charge (i) such number of copies (including manually executed and conformed copies) of such registration statement and to of each underwriteramendment thereof and supplement thereto (including all annexes, if anyappendices, of such Registrable Securities schedules and exhibits), (ii) such number of copies of a the prospectus, used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Actfinal prospectus), and (iii) such number of copies of other documents documents, in each case as such Person Holder or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(ivg) Use its best all commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement under such other the securities or “blue sky sky” laws of such jurisdictions states of the United States as each seller any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably necessary requested by such Holder or advisable to enable such seller underwriter to consummate the offering and disposition of the Registrable Securities owned by such seller in such jurisdictions; provided, except however, that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), wherein it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(vh) Cooperate with the Holders of the Registrable Securities being sold and the sole underwriter or managing underwriter of an underwritten offering shares, if any, to facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the Holders of the Registrable Securities being sold or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least five (5) days prior to any sale of such shares;
(i) Use its best all commercially reasonable efforts to cause such the Registrable Securities covered by such registration statement to be registered or qualified with with, or approved by by, such other United States public, governmental agencies or authorities (includingregulatory authorities, without limitationif any, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate required in connection with the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vij) Immediately notify each seller of Registrable Securities Use all commercially reasonable efforts to list the securities covered by such registration statementstatement on any securities exchange on which any securities of the Company is then listed, at if the listing of such Registrable Securities are then permitted under the applicable rules of such exchange;
(k) Use all commercially reasonable efforts to facilitate the distribution and sale of any time shares of Common Stock to be offered pursuant to this Agreement, including without limitation by making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be requested by the Holders of the Registrable Securities being sold or the lead managing underwriter of an underwritten offering;
(l) Notify each Holder as promptly as practicable and, if requested by any Holder, confirm such notification in writing, (i) when a prospectus relating thereto is required or any prospectus supplement has been filed with the SEC, and, with respect to be delivered under a registration statement or any post-effective amendment thereto, when the Securities Act within same has been declared effective by the appropriate period mentioned in Section 6.3(a)(ii)SEC, if (ii) of the issuance by the SEC of any stop order or the coming to the Company’s attention of the initiation of any proceedings for such or a similar purpose, (iii) of the receipt by the Company becomes aware of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (iv) of the occurrence of any event which requires the making of any changes to a registration statement or related prospectus so that the prospectus included in such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existing; use its best efforts to under which they were made, not misleading (and the Company shall promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver each Holder a reasonable number of copies of an a supplemented or amended or supplemental prospectus as may be necessary so such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 therein, in the light of the circumstances then existing.
under which they are made, not misleading), and (viiv) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement ’s determination that the filing of a post-effective amendment to the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges Registration Statement shall be acceptable to necessary or appropriate. Upon the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in clause (iv) or (v) of this Section 6.3(a)(vi5(l), the Holders shall forthwith discontinue any offer and disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company’s expense, all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders’ possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the registration statements are required to be effective as set forth under Section 6.3(a)(vi).5(a) shall be extended by the number of days from and including the date such notice is provided, to and including the date when Holders shall have received copies of the corrected prospectus; and
(cm) If a registration pursuant Enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to Section 6.1 expedite or 6.2 hereof involves facilitate the disposition of such Registrable Securities (including, in the case of an Underwritten Offeringunderwritten offering, each holder underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to indemnification and contribution contained herein), and in that regard, deliver to the Holders such documents and certificates as may be reasonably requested by any Holder of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company’s compliance with this Agreement including, without limitation, using all commercially reasonable efforts to cause its independent accountants to deliver to the Company (and to the Holders of Registrable Securities agreesbeing sold in any registration) an accountants’ comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement or, whether or if such letter can not such holder’s be obtained through the exercise of all commercially reasonable efforts, cause its independent accountants to deliver to the Company (and to the Holders of Registrable Securities are being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the Company’s financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 accountants under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent then applicable standards of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or Association of Independent Certified Accountants with respect to such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offeringstatement. In addition, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution Holders of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that being included in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain registration hereunder an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Actin substance and scope as are customarily delivered to underwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (MedQuist Holdings Inc.), Registration Rights Agreement (MedQuist Holdings Inc.)
Registration Procedures. (a) If and whenever In the case of each registration, qualification, or compliance effected by the Company is required pursuant to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 3 hereof, the Company willwill keep each Holder including securities therein reasonably advised in writing (which may include e-mail) as to the initiation of each registration, qualification, and compliance and as expeditiously as possibleto the completion thereof. With respect to any registration statement filed pursuant to Section 3, the Company will use its commercially reasonable best efforts to:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities, a registration statement on Form S-1, or any other form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of the Registrable Securities in accordance with the intended method(s) of distribution thereof, and use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective at least for a period ending with the first to occur of (i) the sale of all Registrable Securities covered by the registration statement, (ii) the availability under Rule 144 for the Holder to immediately, freely resell without restriction all Registrable Securities covered by the registration statement, (iii) 90 days after a Piggyback Registration is declared effective by the Commission (in each case, the“Effectiveness Period”); provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that no later than two business days before filing with the Commission a registration statement or prospectus or any amendments or supplements thereto, the Company will shall (i) furnish to the one special counsel (“Holders’ Counsel”) selected by the Requesting Company for the benefit of the Holders (which Holders’ Counsel shall be the same Holders’ Counsel selected under the Registration Rights Agreement of the Company dated October 17, 2007 so long as the Investors remain a party to that agreement), copies of all such documents proposed to be filed (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be filed, which documents will shall be subject to the timely and reasonable review of such counsel; Holders’ Counsel, and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare notify each Holder of Registrable Securities covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(b) if a registration statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission;
(c) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a during the Effectiveness Period (but in any event at least until expiration of the 90-day period as may be requested by referred to in Section 4(3) of the Requesting Holders not exceeding nine (9) months Securities Act and to Rule 174, or any successor thereto, thereunder, if applicable), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statement.;
(iiid) Furnish furnish, without charge, to each holder Holder of Registrable Securities covered by the such registration statement and to each underwriter, if any, (i) a reasonable number of copies of such Registrable Securities registration statement (including any exhibits thereto other than exhibits incorporated by reference), each amendment and supplement thereto as such Holder may request, (ii) such number of copies of a the prospectus included in such registration statement (including each preliminary prospectus and preliminary any other prospectus for delivery filed under Rule 424 under the Securities Act) as such Holders may request, in conformity with the requirements of the Securities Act, and (iii) such other documents as such Person Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Holder, but only during the Effectiveness Period;
(ive) Use use its commercially reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other applicable securities or blue sky laws of such jurisdictions as each seller shall any Holder of Registrable Securities covered by such registration statement reasonably request, requests as may be necessary for the marketability of the Registrable Securities (such request to be made by the time the applicable registration statement is deemed effective by the Commission) and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictions, except Holder; provided that the Company shall not for any such purpose be required to (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(ivparagraph (e), it is not then so qualified, or (Bii) to subject itself to taxation in any such jurisdiction, or (Ciii) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(vf) Use its best efforts to cause as promptly as practicable after becoming aware of such event, notify each Holder of such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within of the appropriate period mentioned in Section 6.3(a)(ii), happening of any event which comes to the Company’s attention if the Company becomes aware that as a result of such event the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of and the circumstances then existing; use its best efforts Company shall promptly prepare and furnish to such Holder a supplement or amendment to such prospectus (or prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at reports under the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, unless suspension of the use of such prospectus otherwise is authorized herein or in the light event of a Blackout Period, in which case no supplement or amendment need be furnished (or Exchange Act filing made) until the circumstances then existing.termination of such suspension or Blackout Period;
(viig) Otherwise use its best efforts comply, and continue to comply during the period that such registration statement is effective under the Securities Act, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission with respect to the disposition of all securities covered by such registration statement, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the Company first full calendar month after the SEC Effective Date, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(viiih) Use its best efforts as promptly as practicable after becoming aware of such event, notify each Holder of Registrable Securities being offered or sold pursuant to the Registration Statement of the issuance by the Commission of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time;
(i) permit the Holders of Registrable Securities being included in cooperation the Registration Statement and their legal counsel, at such Holders’ sole cost and expense (except as otherwise specifically provided in Section 6) to review and have a reasonable opportunity to comment on the Registration Statement and all amendments and supplements thereto at least two Business Days prior to their filing with the underwritersCommission;
(j) make available for inspection by any Holder and any Inspector retained by such Holder, if anyat such Holder’s sole expense, all records as shall be reasonably necessary to enable such Holder to exercise its due diligence responsibility, and cause the Company’s officers, directors, and employees to supply all information which such Holder or any Inspector may reasonably request for purposes of such due diligence; provided, however, that such Holder shall hold in confidence and shall not make any disclosure of any record or other information which the Company determines in good faith to be confidential, and of which determination such Holder is so notified at the time such Holder receives such information, unless (i) the disclosure of such record is necessary to avoid or correct a misstatement or omission in the Registration Statement and a reasonable time prior to such disclosure the Holder shall have informed the Company of the need to so correct such misstatement or omission and the Company shall have failed to correct such misstatement or omission, (ii) the release of such record is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (iii) the information in such record has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such records to any Inspector until and unless such Inspector shall have entered into a confidentiality agreement with the Company with respect thereto, substantially in the form of this Section 4(j), which agreement shall permit such Inspector to disclose records to the Holder who has retained such Inspector. Each Holder agrees that it shall, upon learning that disclosure of such records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company’s expense, to list such Registrable Securities on each securities exchange as they may reasonably designateundertake appropriate action to prevent disclosure of, which securities exchanges or to obtain a protective order for, the records deemed confidential. The Company shall be acceptable hold in confidence and shall not make any disclosure of information concerning a Holder provided to the Company.Company pursuant to this Agreement unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) disclosure of such information to the Staff of the Division of Corporation Finance is necessary to respond to comments raised by the Staff in its review of the Registration Statement, (iii) disclosure of such information is necessary to avoid or correct a misstatement or omission in the Registration Statement, (iv) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (v) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Holder and allow such Holder, at such Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
(ixk) In the event the offering is an Underwritten Offering, use its best efforts to obtain cause all the Registrable Securities covered by the Registration Statement to be listed or quoted on the principal securities market on which securities of the same class or series issued by the Company are then listed or traded;
(l) provide a “cold comfort” letter from the independent public accountants transfer agent and registrar, which may be a single entity, for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.Securities at all times;
(xm) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as cooperate with the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt being offered pursuant to the Registration Statement to facilitate the timely preparation and delivery of certificates (not bearing any notice from restrictive legends) representing Registrable Securities to be offered pursuant to the Company of Registration Statement and enable such certificates to be in such denominations or amounts as the happening of any event of Holders may reasonably request and registered in such names as the kind described in Section 6.3(a)(vi), forthwith discontinue Holders may request; and
(n) take all other reasonable actions necessary to expedite and facilitate disposition by the Holders of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi)Registration Statement.
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Internet America Inc), Registration Rights Agreement (Internet America Inc)
Registration Procedures. (a) If and whenever Whenever Registrable Securities are to be registered pursuant to this Agreement, the Company is required to use its best efforts to will effect or cause the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 6.1 or 6.2 hereofintended method of disposition thereof. Pursuant thereto, the Company will, as expeditiously as possiblepossible and in any event in accordance with the following procedures:
(a) in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder, (i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC within (x) with respect to Long-Form Registrations, forty-five (45) days of such request for registration by an eligible holder of Registrable Securities and (y) with respect to Short-Form Registrations, thirty (30) days of such request for registration by an eligible holder of Registrable Securities, a registration statement statement, and promptly thereafter all amendments and supplements thereto and related prospectuses, with respect to such Registrable Securities; provided, that, no later than the date that is six (6) months following the Closing date, the Company shall file (x) if the Company is a WKSI, an Automatic Shelf Registration Statement or (y) if the Company is not a WKSI, a shelf registration statement on Form S-3, in each case registering the Equityholders’ Registrable Securities and (ii) use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective as soon as reasonably practicable thereafter; provided thatprovided, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that before filing a registration statement or prospectus pursuant to this Agreement or any amendments or supplements thereto or any Free Writing Prospectuses related thereto, the Company will furnish to counsel of the counsel selected by the Requesting Holders Equityholders in such offering copies of all such documents proposed to be filed, filed which documents will shall be subject to the timely and reasonable review of such counsel; , and provided, further, the Company shall give the Equityholders and their counsel a reasonable opportunity to comment on such documents and keep such Equityholders reasonably informed as to the registration process (and the Equityholders of the Registrable Securities covered by such registration statement shall have the right to request that the Company may discontinue modify any information contained in such registration of its securities that is being effected pursuant to Section 6.2 at any time prior statement, amendment or supplement thereto pertaining to the effective date Equityholders and the Company will use its commercially reasonable efforts comply with such request);
(b) promptly notify the Equityholders of the effectiveness of each registration statement relating thereto.
(ii) Prepare filed hereunder and prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a the lesser of (i) one hundred eighty (180) days and (ii) such shorter period as may be requested which will terminate when all Registrable Securities covered by the Requesting Holders not exceeding nine (9) months registration statement have been sold, and to comply with the provisions of the Securities Act and the Exchange Act (or comparable applicable foreign securities laws) with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.; provided, that with respect to any shelf registration statement covering Registrable Securities, if the Company is not eligible to use an Automatic Shelf Registration Statement at the time of filing then the Company shall keep such registration statement continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be useable by the Equityholders (subject to customary public company blackout requirements) until the earliest of (x) the date as of which all Registrable Securities have been sold and (y) such earlier date agreed to in writing by the Company and the Designated Investors;
(iiic) Furnish to each holder if requested by the managing underwriters (if any) or the holders of a majority of the then outstanding Registrable Securities covered by included in such registration statement, promptly include in a prospectus supplement or post-effective amendment such information as the registration statement managing underwriters (if any) or such holders may reasonably request in order to permit the intended method of distribution of such securities and to each underwriter, if any, make all required filings of such Registrable Securities prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, that the Company shall not be required to take any actions under this Section 5(c) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(d) furnish without charge to the Equityholders such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free Writing Prospectus (or similar prospectus available under comparable foreign securities laws) and such other documents as the Equityholders may reasonably request (in each case including all exhibits thereto and documents incorporated by reference therein) in order to facilitate the disposition of the Registrable Securities owned by the Equityholders, and the Company hereby consents to the use of such prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such prospectus and any amendment or supplement thereto;
(e) notify the Equityholders, (i) promptly after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and preliminary when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) promptly after receipt thereof, of any request by the SEC or any state securities authority for the amendment or supplementing of such registration statement or prospectus or for delivery additional information, (iii) promptly after it receives notice thereof, of the issuance by the SEC or any state securities regulator of any stop order suspending such registration statement or the initiation of any proceedings for that purpose, (iv) promptly after receipt thereof of any notification with respect to the suspension of qualification of the Registrable Securities for sale in conformity any jurisdiction or the initiation of any proceeding for such purpose, and (v) promptly during any time when a prospectus relating thereto is required to be delivered under the Securities Act in the event of the occurrence of any event the result of which is that it has actual knowledge that the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, at the request of Equityholders holding a majority of the Registrable Securities remaining unsold under such registration statement during the time that a prospectus is required to be delivered to purchasers of Registrable Securities, the Company will promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (and the period of effectiveness of such registration statement provided for in Section 5(b) shall be extended by the number of days from and including the date such notice is given to the date such amended or supplemented prospectus has been delivered under this Section 5(e));
(f) prepare and file promptly with the SEC, and notify the Equityholders prior to the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, in case any of such holders of Registrable Securities or any underwriter for any such holders is required to deliver a prospectus at a time when the prospectus then in circulation is not in compliance with the Securities Act or the rules and regulations promulgated thereunder (or comparable applicable foreign securities laws), the Company shall prepare promptly upon request of any such holder or underwriter such amendments or supplements to such registration statement and prospectus as may be necessary in order for such prospectus to comply with the requirements of the Securities Act and such rules and regulations promulgated thereunder (or comparable applicable foreign securities laws);
(g) take all reasonable action to ensure that any Free Writing Prospectus utilized in connection with any registration covered by Section 2 or Section 3 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, 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 circumstances under which they were made, not misleading;
(h) cause all such Registrable Securities to be listed on a national or international securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed or traded;
(i) provide a transfer agent and registrar for all such Registrable Securities and provide a CUSIP number for all such Registrable Securities, in each case, not later than the effective date of such registration statement;
(j) enter into and perform such customary agreements (including underwriting agreements in customary form, which agreements include customary limitations on the liability of the holders of Registrable Securities);
(k) use its commercially reasonable efforts to prevent the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction, and in the event of the issuance of any such stop order or other such order the Company shall advise the Equityholders of such stop order or other such order promptly after it shall receive notice or obtain knowledge thereof and shall use its commercially reasonable efforts to promptly obtain the withdrawal of such order;
(l) use its commercially reasonable efforts to obtain a “cold comfort” letter from the Company’s independent public accountants in customary form, addressed to each of the underwriters, as applicable, and covering such matters of the type customarily covered by “cold comfort” letters as the managing underwriters reasonably request;
(m) provide a legal opinion of the Company’s outside counsel addressed to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents as relating thereto in customary form, and reasonably acceptable to the managing underwriters, and covering such Person may reasonably request in order to facilitate the public sale or other disposition matters of the Registrable Securities.type customarily covered by legal opinions of such nature;
(ivn) Use its best efforts cooperate and assist in any filings required to be made with FINRA;
(o) register or qualify such Registrable Securities covered by such registration statement under such other securities or “blue sky sky” laws of such jurisdictions as each any seller shall or underwriter reasonably request, requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictions(provided, except that the Company shall will not for any such purpose be required to (Ax) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements this subparagraph, (y) consent to general service of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation process in any such jurisdiction, or (Cz) to take any action which would subject it to general or unlimited service of process taxation in any such jurisdiction where it is not then so subject.jurisdiction);
(vp) Use its best efforts make up to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities three (including, without limitation, state securities commissions3) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement personnel of the Company which will satisfy reasonably available to assist the provisions of Section 11(a) of underwriters with respect to, and accompany the Securities Act.
(viii) Use its best efforts underwriters on the so-called “road show”, in cooperation connection with the underwritersmarketing efforts for, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to and the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form distribution and covering such matters sale of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to any Demand Registration at times that may be mutually and reasonably agreed upon; provided, that the registration statement covering such Registrable Securities until such holder’s receipt personnel of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include participate in “road shows” (including presentations and any Registrable Securities other marketing or selling events) in excess of five (5) Business Days per Demand Registration;
(q) at any holder in the event that time the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration is a well-known seasoned issuer (as defined in Rule 405 under Rule 144 or other provision of the Securities Act) (a “WKSI”), use its commercially reasonable efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) so long as the Equityholders hold Registrable Securities;
(r) if an Automatic Shelf Registration Statement covering Registrable Securities has been outstanding for at least three years, at the end of the third year, file a new Automatic Shelf Registration Statement covering all of the Registrable Securities (and keep such new Automatic Shelf Registration Effective in accordance with the terms hereof);
(s) if at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI and an Automatic Shelf Registration Statement covering Registrable Securities is then outstanding, file a shelf registration statement on Form S-3 and keep such registration statement effective during the period as required in the proviso to Section 5(b); and
(t) take such other actions and deliver such other documents and instruments as may be reasonably necessary to facilitate the registration and disposition of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (DigitalBridge Group, Inc.), Purchase and Sale Agreement (DigitalBridge Group, Inc.)
Registration Procedures. (a) If In connection with the Company's registration obligations pursuant to Sections 2, 3 and whenever 3A hereof, the Company is required to will use its reasonable best efforts to effect or cause such registration to permit the registration sale of any the Registrable Securities under covered thereby in accordance with the Securities Act as provided in Section 6.1 intended method or 6.2 hereofmethods of disposition thereof, and pursuant thereto the Company will, will as expeditiously as possible:
(ia) Prepare andwith respect to registrations made pursuant to Section 2 only, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective; effective as soon as practicable, and, upon the request of any Holder of Registrable Securities to be sold under such Registration Statement (a "Rights Holder"), keep such Registration Statement effective for up to ninety (90) days, provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement any Registration Statement or prospectus Prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Rights Holders and their counsel, copies of all such documents proposed to be filedfiled at least three (3) days prior thereto, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue will not name or otherwise provide any registration information with respect to any Rights Holder in any Registration Statement or Prospectus without the express written consent of its securities that is being effected pursuant such Rights Holder, which consent shall not be unreasonably withheld, unless required to Section 6.2 at any time prior to do so by the effective date of Securities Act and the registration statement relating thereto.rules and regulations thereunder;
(iib) Prepare prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement the Registration Statement and the prospectus used in connection therewith Prospectus as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act and the rules and regulations thereunder with respect to the disposition of all securities covered by such registration statement during such period in accordance Registration Statement;
(c) promptly notify the Rights Holders (i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the intended methods Registration Statement or any post-effective amendment, when the same has become effective, (ii) of disposition any request by the seller SEC for amendments or sellers thereof set forth in such registration statement.
supplements to the Registration Statement or the Prospectus or for additional information, (iii) Furnish to each holder of Registrable Securities covered the issuance by the registration statement and to each underwriter, if any, SEC of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with any stop order suspending the requirements effectiveness of the Securities ActRegistration Statement or the initiation of any proceedings for that purpose, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts of the receipt by the Company of any notification with respect to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws the suspension of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition qualification of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation sale in any jurisdiction where, but or the initiation or threatening of any proceeding for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
purpose and (v) Use its best efforts to cause of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference so that such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at documents will not contain any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existingunder which they were made, not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible time;
(e) if requested by the Approved Underwriter or Rights Holder, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the Approved Underwriter and such Rights Holder agree should be included therein as required by applicable law and (ii) make all required filings of such Prospectus supplement or such post-effective amendment promptly after the Company has received notification of the matters to be incorporated in such Prospectus supplement or such post-effective amendment; use its best efforts provided, however, that the Company shall not be required to prepare and file an appropriate amendment or supplement take any of the actions of this Section 6(e) which it determines are not, on the advice of counsel for the Company, required under applicable law;
(f) furnish to such prospectus and to cause such amendment or supplement to become effective; andeach Rights Holder, without charge, at least one copy of the request Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to the Rights Holders, without charge, such reasonable number of conformed copies of the Registration Statement (and any post-effective amendment thereto) and such seller, deliver a reasonable number of copies of an amended the Prospectus (including each preliminary prospectus) and any amendment or supplemental prospectus supplement thereto (and any documents incorporated by reference therein) as the Rights Holders may reasonably request, all in full conformity with the Securities Act; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Rights Holders in connection with the offer and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any offering of Registrable Securities covered by a Registration Statement, register or qualify or cooperate with the Rights Holders in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any Rights Holder reasonably requests, and use its reasonable best efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, during the period such Registration Statement is required to be kept effective pursuant to the terms of this Agreement; and do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions reasonably requested by such Rights Holder, provided that under no circumstances shall the Company be required in connection therewith or as a condition thereof to qualify to do business, to become subject to taxation or to file a general consent to service of process in any such states or jurisdictions;
(i) cooperate with the Rights Holders and the managing underwriter or underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, free of any and all restrictive legends, such certificates to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or the Rights Holders may request;
(j) upon the occurrence of any event contemplated by Section 6(c)(v) above, prepare a supplement or post-effective amendment to the Registration Statement or the Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable Securities, such prospectus shall the Prospectus will not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.misleading;
(viik) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year holders of the Company), an 's outstanding securities earnings statement of the Company which will satisfy statements satisfying the provisions of Section 11(a) of the Securities Act., no later than forty-five (45) days after the end of any twelve (12) month period (or ninety (90) days, if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or, if not sold to underwriters in such an offering, (ii) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve (12) month period;
(viiil) Use provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by each Registration Statement from and after a date not later than the effective date of such Registration Statement;
(m) use its reasonable best efforts to cause all Registrable Securities covered by each Registration Statement to be listed, subject to notice of issuance, prior to the date of the first sale of such Registrable Securities pursuant to such Registration Statement, on each securities exchange on which the Shares issued by the Company are then listed, and admitted to trading on the Nasdaq Stock Market or other national exchange, if the Shares are then admitted to trading on the Nasdaq Stock Market or such national exchange;
(n) enter into such agreements (including underwriting agreements in cooperation customary form containing, among other things, reasonable and customary indemnities) and take such other actions as the Rights Holders shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities; and
(o) furnish, at the request of the Rights Holders, on the date that Registrable Securities are delivered to an underwriter for sale in connection with an underwritten registration, or, in connection with any other registration, on the date that the Registration Statement with respect to such registration becomes effective, (i) an opinion, dated such date, of the counsel representing the Company for the purpose of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to list the Rights Holders, (ii) a letter dated such Registrable Securities on each securities exchange date, from the independent certified public accountants of the Company, in form and substance as they may is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Rights Holders, subject to such Rights Holders' provision of information reasonably designaterequested by such independent certified public accountants to comply with the rules governing delivery of such letters, which securities exchanges shall be and (iii) cause the underwriting agreement to contain indemnification provisions and procedures no less favorable than those set forth in Section 8 hereof (or such other provisions and procedures acceptable to the Company.
(ixRights Holders) In the event the offering is an Underwritten Offering, use its best efforts with respect to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering all parties to be indemnified pursuant to such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Section. Each holder of Registrable Securities willRights Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi)6(c)(v) hereof, such Rights Holder will forthwith discontinue disposition of the Registrable Securities pursuant under the Prospectus related to the registration statement covering such Registrable Securities applicable Registration Statement until such holder’s Rights Holder's receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by Section 6.3(a)(vi).
(c6(j) If hereof, or until it is advised in writing by the Company that the use of the Prospectus may be resumed. It shall be a registration condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of 6 with respect to the Registrable Securities agrees, whether or not of a Rights Holder that such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration Rights Holder shall furnish to the Company all such information as regarding itself and the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities held by it as shall be required by the Securities Act to enable the Company to include such information in effect the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Rights Holder's Registrable Securities each such holder has requested to be included in such registrationand as typically provided by similarly situated selling stockholders.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Goldman Sachs Group Inc), Registration Rights Agreement (Orion Power Holdings Inc)
Registration Procedures. (a) If and whenever Whenever any Holder requests that any Registerable Securities be registered pursuant to this Agreement. the Company is required to shall use its reasonable best efforts to effect or cause effect, as soon as practical as provided herein, the registration and the sale of any Registrable such Registerable Securities under in accordance with the Securities Act as provided in Section 6.1 or 6.2 hereofintended methods of disposition thereof, and, pursuant thereto, the Company willshall, as expeditiously soon as possiblepractical as provided herein:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given subject to the Company (or within ninety (90) days after the end other provisions of such period if such period ends during the first month or the last month of the Company’s fiscal year)this Agreement, file use reasonable best efforts to prepare and tile with the Commission SEC a registration statement Registration Statement with respect to such Registrable Registerable Securities and use its best efforts to cause such registration statement Registration Statement to become effective (unless it is automatically effective upon filing); and remain effective; provided that, in the case of before tiling a registration provided for in Section 6.1 Registration Statement or 6.2 hereof, before filing a registration statement or prospectus Prospectus or any amendments or supplements thereto, the Company will furnish to all Participating Holder(s) and the counsel selected by the Requesting Holders underwriters or other distributors, if any, copies of all such documents proposed to be filedtiled, which including documents will incorporated by reference in the Prospectus and, if requested by any Participating Holder, one set of the exhibits incorporated by reference, and all Participating Holder(s) and one counsel selected by the ▇▇▇▇▇ Holders holding a majority of the Registerable Securities held by all ▇▇▇▇▇ Holders to be subject registered on such Registration Statement (“Holder’s Counsel”), shall have three (3) Business Days to review and comment on the timely Registration Statement and reasonable review each such Prospectus (and each amendment or supplement thereto) before it is filed with the SEC, and each Participating Holder shall have the opportunity to object to any information pertaining to such Participating Holder that is contained therein within three (3) Business Days of such counsel; receipt of the documents proposed to be tiled, and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant will make the corrections reasonably requested by the Participating Holder(s) with respect to Section 6.2 at any time such information prior to the effective date of the registration statement relating filing any Registration Statement or Prospectus or any amendment or supplement thereto.;
(ii) Prepare use reasonable best efforts to prepare and file tile with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such registration statement Registration Statement effective for the relevant period required hereunder, but in any case (other than a period as may be requested Shelf Registration) no longer than is necessary to complete the distribution of Registerable Securities covered by the Requesting Holders not exceeding nine (9) months such Registration Statement, and to comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all securities Registerable Securities covered by such registration statement Registration Statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.Registration Statement;
(iii) Furnish use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registerable Securities for sale in any jurisdiction in the United States;
(iv) furnish to all Participating Holders and each holder of Registrable Securities covered by the registration statement and to each managing underwriter, if any, without charge, conformed copies of each Registration Statement and amendment thereto and copies of each supplement thereto promptly after they are filed with the SEC (but only one set of exhibits thereto need be provided); and deliver, without charge, to such Registrable Securities Persons such number of copies of a prospectus the preliminary and preliminary prospectus for delivery final Prospectus and any supplement thereto as the Participating Holder(s) may reasonably request in order to facilitate the disposition of the Registerable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.;
(ivv) Use its best use commercially reasonable efforts to register or qualify such Registrable Registerable Securities covered by such registration statement under such other securities or blue sky laws of such U.S. jurisdictions as each seller shall the Participating Holder(s) reasonably request, request and do any and all other acts and things which continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be reasonably necessary or advisable required to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except be kept effective under this Agreement (provided that the Company shall will not for any such purpose be required to (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(ivsubparagraph (v), it is not then so qualified, or (B) to 8) subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (Ajurisdiction), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately notify each seller Participating Holder and each distributor of Registrable Securities covered by such registration statementRegisterable Securities, at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities Act within to be delivered by such distributor, of the appropriate period mentioned in Section 6.3(a)(ii), if occurrence of any event as a result of which the Company becomes aware that the prospectus Prospectus included in such registration statement, as then in effect, includes Registration Statement contains an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Participating Holder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary Prospectus so that, as thereafter delivered to the purchasers of such Registrable Registerable Securities, such prospectus Prospectus shall not include contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vii) in the case of an Underwritten Offering, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters) as arc customary and reasonable for an offering of such kind. and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registerable Securities (including making members of senior management of the Company available to participate in “road-show” and other customary marketing activities):
(viii) in the case of an Underwritten Offering. and to the extent not prohibited by applicable law or pre-existing applicable contractual restrictions, (A) make reasonably available, for inspection by the Participating Holder(s), Holder’s Counsel. the managing underwriters of such offering and one attorney (and one accountant) for such managing underwriter, pertinent corporate documents and financial and other records of the Company and the subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by the Participating Holder(s) or such managing underwriters or attorney in connection with such offering and (e) make the Company’s independent accountants available for any such managing underwriters’ due diligence: provided, however. that such records and other information shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews; and provided, further, that, unless the disclosure of such records is necessary to avoid or correct a misstatement or omission in the Registration Statement or otherwise to comply with federal securities laws or the release of such records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (I) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney/client privilege that was applicable to such information or (2) if either (x) the Company has requested and been granted from the SEC confidential treatment of such information contained in any tiling with the SEC or documents provided supplementally or otherwise or (y) the Company reasonably determines in good faith that such records are confidential and so notifies the Persons requesting the records in writing unless prior to furnishing any such information with respect to (1) or (2) such Person requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions: and provided, further, that each such Person agrees that it will, upon learning that disclosure of such records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the records deemed confidential;
(ix) use reasonable best efforts to cause all such Registerable Securities to be listed on each securities exchange (if any) on which similar securities of the same class issued by the Company are then listed:
(x) provide a transfer agent and registrar for all such Registerable Securities not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registerable Securities pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registerable Securities to be sold:
(xi) make generally available to its security holders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earnings statement under 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
(xii) as promptly as practicable notify the Participating Holder(s) and the managing underwriters of any Underwritten Offering, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding any Participating Holder:
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registerable Securities for sale under the applicable securities or blue sky laws of any jurisdiction; and
(xiii) keep Holder’s Counsel reasonably apprised as to the intention and progress of the Company with respect to any Registration Statement hereunder, including by providing Holder’s Counsel with copies of all written correspondence with the SEC in connection with any Registration Statement or Prospectus filed hereunder.
(b) The Company shall ensure that (i) no Registration Statement (including any amendments thereto) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein not misleading misleading, and (ii) no Prospectus (including any supplements thereto) shall contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holdersunder which they were made, not misleading, in each case as soon as practicablecase, but not later than ninety (90) calendar days after except for any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in reliance on and in conformity with written information furnished to the close Company by or on behalf of the period covered thereby (one hundred eighty (180Holder(s) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, or any underwriter or other distributor specifically for use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi)therein.
(c) If At all times after the Company has filed a registration Registration Statement with the SEC pursuant to the requirements of the Securities Act, the Company shall use reasonable best efforts to continuously maintain in effect the Registration Statement tor the relevant period required hereunder under Section 6.1 or 6.2 hereof involves an Underwritten Offering12 of the Exchange Act, each holder of Registrable and to use reasonable best efforts to file all reports required to be filed by it under the Securities agreesAct and the Exchange Act and the rules and regulations adopted by the SEC thereunder, whether or not such holder’s Registrable all to the extent required to enable the Holder(s) to be eligible to sell Registerable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a The Company may require the Participating Holder(s) and each distributor of Registerable Securities as to which any registration pursuant is being effected to Section 6.1 or 6.2 involves an Underwritten Offering, furnish to the Company agrees, if so required by any other information regarding such Person and the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, such securities as the case Company may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offerfrom time to time reasonably request.
(e) If The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a registration pursuant prospectus, and references herein to Section 6.1 any “supplement” to a Prospectus shall include any such issuer free-writing prospectus. Neither any Participating Holder nor any other seller of Registerable Securities may use a free-writing prospectus to offer or 6.2 involves an Underwritten Offering, sell any holder of Registrable Securities requesting to be included in such registration may elect, in writing, shares without the Company’s prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3written consent.
(f) In It is understood and agreed that any registration pursuant to Section 6.1 or 6.2, each holder failure of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include file a Registration Statement or any amendment or supplement thereto or to cause any such information document to become or remain effective or usable within or for any particular period of time as provided in the registration statement.
(g) It is understood this Agreement, due to reasons that in any Underwritten Offering in addition are not reasonably within its control, or due to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) refusal of the initial shares SEC to permit a Registration Statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or such other maximum amount as on any documents incorporated therein by reference) despite the National Association of Securities Dealers, Inc. may then permit), solely Company’s good faith and diligent efforts to cover over-allotmentsresolve those comments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include a breach of this Agreement. However, neither shall any Registrable Securities of any holder in the event that such failure relieve the Company shall obtain an opinion of its counsel that all obligations hereunder to use reasonable best efforts to remedy such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Actfailure.
Appears in 2 contracts
Sources: Registration Rights Agreement (Amc Entertainment Inc), Registration Rights Agreement (Amc Entertainment Holdings, Inc.)
Registration Procedures. (a) If and whenever In connection with the Company is required to use its best efforts to effect or cause the Company's registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofobligations hereunder, the Company will, as expeditiously as possibleshall:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (amendments, including post-effective amendments) and supplements , to such registration statement a Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to the Securities Act; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a period Registration Statement or any amendment thereto and provide as may be requested by the Requesting Holders not exceeding nine (9) months promptly as reasonably possible to Investor true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Company may excise any information contained therein which would constitute material non-public information as to Investor); and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act of 1934, as amended (the "Exchange Act") with respect to the disposition of all securities Registrable Securities covered by such registration statement a Registration Statement during such the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the seller or sellers thereof Investor set forth in such registration statementRegistration Statement as so amended or in such Prospectus as so supplemented.
(iiib) Furnish If during the Effectiveness Period the Company becomes eligible to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of file a prospectus and preliminary prospectus for delivery in conformity with the requirements of Registration Statement on Form S-3 under the Securities ActAct (“Form S-3”), the Company shall promptly convert the Initial Registration Statement and such other documents any Follow-On Registration Statement, as such Person may reasonably request in order applicable, to facilitate the public sale or other disposition of the Registrable Securitiesa Form S-3.
(ivc) Use its best efforts Notify each Investor (which notice shall, pursuant to register clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one (1) Business Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Business Day following the day (i)(A) when a Prospectus or qualify such Registrable Securities covered by such registration statement under such other securities any Prospectus supplement or blue sky laws post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a "review" of such jurisdictions as each seller shall reasonably requestRegistration Statement and whenever the Commission comments in writing on such Registration Statement, and do (C) with respect to a Registration Statement or any and post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus, (iii) of the issuance by the Commission or any other federal or state governmental authority of any “stop-order” suspending the effectiveness of a Registration Statement covering any or all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned or the initiation of any Proceedings for that purpose; (iv) of the receipt by such seller in such jurisdictions, except that the Company shall not of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for any such purpose be required (A) to qualify to do business as a foreign corporation sale in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take the initiation or threatening of any action which would subject it to general or unlimited service of process in any Proceeding for such jurisdiction where it is not then so subject.
purpose; (v) Use its best efforts to cause such Registrable Securities covered by such registration of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated or deemed to be registered incorporated therein by reference untrue in any material respect or qualified with that requires any revisions to a Registration Statement, Prospectus or approved by such other governmental agencies documents so that, in the case of a Registration Statement or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statementProspectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existingunder which they were made, not misleading; use and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided that, any and all of such information shall remain confidential to Investor until such information otherwise becomes public, unless disclosure by Investor is required by law; provided, further, that notwithstanding Investor's agreement to keep such information confidential, Investor makes no acknowledgement that any such information is material, non-public information.
(d) Use its best efforts to prepare avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or 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, at the earliest practicable moment.
(e) Furnish to each Investor, without charge, at least one conformed copy of each such Registration Statement and file an appropriate each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(f) Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement to thereto by Investor in connection with the offering and sale of the Registrable Securities covered by such prospectus Prospectus and to cause such any amendment or supplement to become effective; andthereto, at except after the request giving of any notice pursuant to Section 3(c).
(g) The Company shall cooperate with any broker-dealer through which an Investor proposes to resell its Registrable Securities in effecting a filing with FINRA, as requested by Investor, and the Company shall pay the filing fee required by such sellerfiling within two (2) Business Days of request therefor.
(h) Prior to any resale of Registrable Securities by an Investor, deliver use its commercially reasonable efforts to register or qualify or cooperate with each Investor in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by an Investor under the securities or Blue Sky laws of such jurisdictions within the United States as an Investor reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a reasonable number general consent to service of copies process in any such jurisdiction.
(i) Upon the occurrence of an amended any event contemplated by Section 3(c), as promptly as reasonably possible under the circumstances taking into account the Company's good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or supplemental prospectus as may amendment, including a post-effective amendment, to a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be necessary incorporated therein by reference, and file any other required document so that, as thereafter delivered to the purchasers of delivered, neither a Registration Statement nor such Registrable Securities, such prospectus shall not include Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies Investor in accordance with clauses (iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then existing.
(vii) Otherwise Investor shall suspend use of such Prospectus. The Company will use its best efforts to comply ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus for a period not to exceed ninety (90) calendar days (which need not be consecutive days) in any twelve (12) month period.
(j) Comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities ActCommission.
(viiik) Use its best efforts in cooperation with The Company may require each Investor to furnish to the underwritersCompany a certified statement as to the number of shares of Common Stock beneficially owned by such Investor and, if anyrequired by the Commission, the natural persons thereof that have voting and dispositive control over the shares. During any periods that the Company is unable to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable meet its obligations hereunder with respect to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition registration of the Registrable Securities pursuant solely because Investor fails to the registration statement covering furnish such Registrable Securities until such holder’s receipt information within three (3) Business Days of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi)Company's request.
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Subscription Agreement, Registration Rights Agreement (SolarWindow Technologies, Inc.)
Registration Procedures. (a) If and whenever the Company is required by the provisions of Section 2 or 3 to use its best reasonable efforts to effect or cause the registration of any Registrable Securities of its securities under the Securities Act as provided in Section 6.1 or 6.2 hereofAct, the Company will, as expeditiously as is reasonably possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement Registration Statement with respect to such Registrable Securities securities and use its best reasonable efforts to cause such registration statement Registration Statement promptly to become and remain effective; provided that, in effective for a period of time required for the case disposition of such Securities by the holders thereof but not to exceed 60 days (except with respect to a registration provided for Shelf Registration Statement which shall remain effective as set forth in Section 6.1 or 6.2 hereof2(c)); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements theretothereto (for purposes of this subsection, amendments shall not be deemed to include any filing that the Company is required to make pursuant to the Exchange Act), the Company will shall furnish the Selling Holders and the representatives referred to the counsel selected by the Requesting Holders in Section 5(n) copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided. The Company shall not be deemed to have used its reasonable efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in the Holders of such Registrable Securities not being able to sell such Registrable Securities during that period, further, that the Company may discontinue any registration of its securities that unless such action is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.required under applicable law;
(iib) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement Registration Statement (or additional Registration Statements as provided in Section 2(c)) and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement during Registration Statement until the earlier of such time as all of such securities have been disposed of in a public offering or the expiration of 60 days (except with respect to the Shelf Registration Statement, for which such period in accordance with the intended methods of disposition by the seller or sellers thereof is set forth in such registration statement.Section 2(c));
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities Selling Holder such number of conformed copies of the applicable Registration Statement and each such amendment and supplement thereto (including in each case all exhibits), and of a summary prospectus and or other prospectus, including a preliminary prospectus for delivery prospectus, in conformity with the requirements of the Securities Act, and such number of copies of any Issuer Free Writing Prospectus and such other documents documents, as such Person Selling Holders may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(ivd) Use use its best reasonable efforts to register or qualify such Registrable Securities the securities covered by such registration statement Registration Statement under such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as each seller any Selling Holder or underwriter of such securities shall reasonably requestrequest (in light of the intended plan of distribution of such securities), to keep such registration or qualification in effect for so long as such Registration Statement remains in effect or until all Registrable Securities have been sold (whichever is earlier), and do to take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsSelling Holder (provided, except however, that the Company shall not for any such purpose be required (A) in connection therewith or as a condition thereto to qualify to do business as business, subject itself to taxation in or to file a foreign corporation general consent to service of process in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv)paragraph (d) be obligated to do so; and provided, it is further, that the Company shall not then so qualified, or (B) be required to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause qualify such Registrable Securities covered by in any jurisdiction in which the securities regulatory authority requires that any Selling Holder submit any shares of its Registrable Securities to the terms, provisions and restrictions of any escrow, lockup or similar agreement(s) for consent to sell Registrable Securities in such registration statement jurisdiction unless such Holder agrees to be registered or qualified with or approved by do so), and do such other governmental agencies or authorities (including, without limitation, state securities commissions) reasonable acts and things as may be necessary required of it to enable the seller or sellers thereof such Holder to consummate the disposition in such jurisdiction of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities securities covered by such registration statementRegistration Statement;
(e) in connection with an underwritten offering, at any time when obtain for each underwriter:
(i) an opinion of independent legal counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such underwriters, and
(ii) a prospectus relating thereto is required to be delivered under “comfort” letter signed by the Securities Act within independent registered public accountants who have certified the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus Company’s financial statements included in such registration statementstatement (and, as then in effectif necessary, includes an untrue statement any other independent registered public accountant of a material fact any subsidiary of the Company or omits to state any material fact business acquired by the Company from which financial statements and financial data are, or are required to be stated therein or necessary to make be, included in the statements therein not misleading in light of the circumstances then existing; registration statement);
(f) use its best reasonable efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; andfurnish, at the request of any Holder requesting registration of Registrable Securities pursuant to Section 2 or 3, if such sellerRegistrable Securities are not being sold through underwriters, deliver a reasonable number on the date that the registration statement with respect to such shares of copies Registrable Securities becomes effective, (1) an opinion, dated such date, of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers independent legal counsel for the Company for the purpose of such Registrable Securitiesregistration, addressed as to such prospectus shall not include an untrue statement of matters as the Holders holding 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 majority of the circumstances then existing.
Registrable Securities included in such registration may reasonably request; and (vii2) Otherwise use its best efforts to comply with all applicable rules letters dated such date and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after date the close of offering is priced from the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of independent registered public accountants who have certified the Company)’s financial statements included in such registration statement (and, an earnings statement if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which will satisfy financial statements and financial data are, or are required to be, included in the provisions of Section 11(aregistration statement), addressed to the Holders making such request and, if such accountants refuse to deliver such letters to such Holders, then to the Company (i) stating that they are independent certified public accountants within the meaning of the Securities Act.Act and that, in the opinion of such accountants, the financial statements and other financial data of the Company included in the Registration Statement or the prospectus, or any amendment or supplement thereto, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and (ii) covering such other financial matters (including information as to the period ending not more than five (5) Business Days prior to the date of such letters) with respect to the registration in respect of which such letter is being given as such Holders may reasonably request;
(viiig) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in enter into customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents agreements (including in if the method of distribution is by means of an Underwritten Offering underwriting, an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders are reasonably request required in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.;
(bh) Each holder otherwise use its reasonable efforts to comply with all applicable rules and regulations of the SEC, and make earnings statements satisfying the provisions of Section 11(a) of the Securities Act generally available to the Holders no later than 45 days after the end of any twelve-month period (or 90 days, if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities willare sold to underwriters in an underwritten public offering, upon receipt or (ii) if not sold to underwriters in such an offering, beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said twelve-month periods;
(i) use its reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange or quotation system on which similar securities issued by the Company are listed or traded;
(j) give written notice to the Holders:
(i) when such Registration Statement or any amendment thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any notice from request by the SEC for amendments or supplements to such Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Equity Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in such Registration Statement or the prospectus in order to make the statements therein not misleading (which notice shall be accompanied by an instruction to suspend the use of the kind described prospectus until the requisite changes have been made);
(k) use its reasonable efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of such Registration Statement at the earliest possible time;
(l) furnish to each Holder, without charge, at least one copy of such Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits (including those, if any, incorporated by reference);
(m) upon the occurrence of any event contemplated by Section 6.3(a)(vi5(j)(v) above, promptly prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus or file any other required document so that, as thereafter delivered to the Holders, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with Section 5(j)(v) above to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Holders shall suspend use of such prospectus and use their reasonable efforts to return to the Company all copies of such prospectus (at the Company’s expense) other than permanent file copies then in such Holder’s possession, and the period of effectiveness of such Registration Statement provided for above shall be extended by the number of days from and including the date of the giving of such notice to the date Holders shall have received such amended or supplemented prospectus pursuant to this Section 5(m);
(n) subject to the execution of customary confidentiality agreements satisfactory in form and substance to the Company, forthwith discontinue pursuant to the reasonable request of the Selling Holders or applicable underwriters, make reasonably available for inspection by any Selling Holders, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Selling Holders or any representative of the Selling Holders or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and cause the Company’s officers, directors and employees to supply all relevant information reasonably requested by such representative or any such underwriter, attorney, accountant or agent in connection with the registration; provided that any such inspection shall be done in a manner so as not to disrupt the operation of the Company’s business.
(o) in connection with any underwritten offering pursuant to which Registrable Securities are offered by Holders in accordance with Section 2 or 3 hereof, make appropriate officers of the Company available to the Selling Holders (and, in connection with any underwritten offering, the underwriters) for diligence and for meetings with prospective purchasers of the Registrable Securities pursuant and prepare and present to potential investors customary “road show” material in each case in accordance with the registration statement covering such Registrable Securities until such holder’s receipt recommendations of the copies underwriters and in all respects in a manner consistent with other new issuances of securities in an offering of a similar size to such offering of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten OfferingRegistrable Securities, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.any proposed sale of the Registrable Securities; and
(ep) If use reasonable efforts to procure the cooperation of the Company’s transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Selling Holders or the underwriters. It shall be a registration condition precedent to the obligation of the Company to take any action pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder this Agreement in respect of Registrable the Registerable Securities requesting which are to be included in registered at the request of any Holder that such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration Holder shall furnish to the Company all such information regarding the Registrable Securities held by such Holder and the intended method of disposition thereof as the Company may shall reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable as shall be required in connection with the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold action taken by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationCompany.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Subscription Agreement (Azure Power Global LTD), Subscription Agreement (Azure Power Global LTD)
Registration Procedures. (a) If Subject to the limitations set forth elsewhere herein, if and whenever the Company is required by the provisions of this Agreement to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, the Company will, as expeditiously as possible:
(ia) Prepare andin the case of a registration under Section 2.2 hereof, in any event prepare and file with the SEC (such filing to be made within sixty (60) calendar 60 days after the end of initial request by the period within which requests for registration may be given requesting Holders pursuant to the Company (or within ninety (90Section 2.2(a) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities on a form appropriate to permit such Holders to sell the Proposed Amount in accordance with such Holders' intended method of distribution and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(iib) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a such period as may shall be requested by the Requesting Holders owning the Proposed Amount, which period shall not exceeding nine exceed twelve (912) months and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement during such period;; provided, however, that if such registration has been effected pursuant to Form S-3 (or any successor form), then such period in accordance with of effectiveness shall be until the intended methods earlier of disposition (i) 24 months or (ii) the date that the offering is completed or terminated;
(c) furnish to a single firm of counsel, initially Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, or such other counsel thereafter designated by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder Holders who hold a majority of the Registrable Securities covered being sold (the "Holder's Counsel"), and each underwriter of the securities being sold by such Holders, at least 5 days prior to the registration statement and to each underwriterfiling thereof, if any, of such Registrable Securities such number of copies of a such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus and included in such registration statement (including each preliminary prospectus for delivery prospectus), in conformity with the requirements of the Securities Act, and such other documents documents, as such Person counsel may reasonably request request, in substantially the form in which they are proposed to be filed with the SEC, in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Holders;
(ivd) Use use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller underwriter of the securities being sold by such Holders shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Holders and such underwriter to consummate the disposition in such jurisdictions of the such Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(ivclause (d), it is would not then be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(ve) Use use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vif) Immediately notify each seller of Registrable Securities covered by such registration statementthe Holders owning the Proposed Amount, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes Company's becoming aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to , and promptly prepare and file an appropriate amendment or supplement furnish to such prospectus Holders and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver each underwriter a reasonable number amount of copies of an amended a prospectus supplement or supplemental prospectus as may be necessary amendment so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.;
(viig) Otherwise otherwise use its best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holdersthe Holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first day of the Company Company's first calendar quarter after the effective date of the registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.;
(viiih) Use its best efforts enter into such agreements (including an underwriting agreement in cooperation with customary form) and take such other actions as the underwriters, if any, Holders shall reasonably request in order to list expedite or facilitate the disposition of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.Securities;
(ixi) In the event the offering is an Underwritten Offering, to use its best efforts to obtain furnish to the Holders owning the Proposed Amount an opinion from the Company's counsel and a “"cold comfort” " letter from the Company's independent public accountants for the Company accountant (in accordance with SAS 72), addressed to such Holders, in customary form and covering such matters of the type customarily covered by such letters opinions and "cold comfort" letters, in each case for the type of offering contemplated (i.e., underwritten or self-underwritten), as such Holders shall reasonably request;
(j) make available for inspection by the Holders, by any other underwriter participating in any disposition to be effected pursuant to such registration statement, and by any attorney, accountant or other agent retained by such Holders or any such underwriter, all reasonably pertinent financial and other records, reasonably pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors, employees and the independent public accountants who have audited its financial statements to supply all information reasonably requested by such Holders or any such underwriter, attorney, accountant or agent in connection with such registration statement; provided, however, that each such Holder and each such representative of such Holder, underwriter, attorney, accountant or agent must execute and deliver to the Company a confidentiality agreement in form and substance reasonably acceptable to the Company agreeing to keep any such information and records concerning the Company confidential;
(k) permit such Holders to participate in the preparation of such registration or comparable statement;
(l) at or prior to the effective date of the registration use commercially reasonable efforts to cause all Registrable Securities covered by such Registration Statement to be (i) listed on each securities exchange, if any, on which similar securities issued by the Company are then listed or (ii) authorized to be quoted on the National Association of Securities Dealers Automated Quotation System if the securities so qualify and if the Company does not then have similar securities listed on any national securities exchange; and
(m) in the case of an underwritten offering, enable the Registrable Securities to be in such denominations or such number of shares and registered in such names as the Requesting Holders reasonably underwriters may request in order at least two business days prior to effect an Underwritten Offering the sale of such the Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as . In the Requesting Holders reasonably request in order to effect case of an underwritten public offering offering, the underwriters shall be selected by the Company and reasonably acceptable to such Holders owning a majority of such the Proposed Amount of Registrable Securities.
(b) Each holder of Registrable Securities will. The Holders owning the Proposed Amount shall, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi)subdivision (f) above, forthwith discontinue its disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s Holders' receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreessaid subdivision and, if so required directed by the managing underwriterCompany, not will deliver to effect any public sale or distribution the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holders' possession of any the prospectus covering such Registrable Securities current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securitiesnotice. In the event the Company shall give any such notice, as the case may be, period mentioned in subdivision (b) above shall be extended by the number of days during a the period commencing seven (7) days before from and ending one hundred eighty (180) (or such lesser number as including the managing underwriter shall designate) days after the effective date of the giving of such registration, except for notice to and including the date when such Underwritten Offering Holders shall have received the copies of the supplemented or except amended prospectus contemplated by subdivisions (f) above. The Holders shall enter into such customary agreements as requested by the Company in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such of securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under as contemplated by this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration Agreement. The Holders shall furnish to the Company all in writing such information as and documents regarding such Holders and the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities such securities as may be required to enable the Company to include such information be disclosed in the registration statement.
(g) It is understood that statement in question by the rules and regulations under the Securities Act or under any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) other applicable securities or blue sky laws of the initial shares (or jurisdictions referred to in Section 2.3(d) hereof. The Company may exclude from such other maximum amount as registration the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request. If any such registration or comparable statement refers to any Holder by name or otherwise as the holder of any securities of the Company then such Holder shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to such Holder and presented to the Company in writing, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the Company's securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to such Holder by name or otherwise is not required by the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may Act or any similar federal statute then be sold without registration under Rule 144 or other provision in force, the deletion of the Securities Actreference to such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hi Rise Recycling Systems Inc), Registration Rights Agreement (General Electric Capital Corp)
Registration Procedures. (a) If and whenever Whenever the Company is required to use its best efforts to effect or cause Purchaser requests the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, the Company willshall use its reasonable best efforts to register and permit the sale of the Registrable Securities in accordance with the intended method of disposition, and to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchaser. If the Company is not eligible to use Form S-3 at the time of filing, and the Company subsequently becomes eligible to use Form S-3, the Company shall file, as expeditiously promptly as possiblereasonably practicable, a new Registration Statement on Form S-3 covering the resale of the Registrable Securities and replace the Registration Statement on Form S-1 with the new Registration Statement on Form S-3 upon the effectiveness of the new Registration Statement on Form S-3.
(b) The Company shall use its best efforts to:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement the Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary or advisable to keep such registration statement the Registration Statement current and effective for the Registrable Securities held by the Purchaser for a period as ending on the earlier of (i) the date on which all Registrable Securities may be requested sold pursuant to Rule 144 under the Securities Act or any successor rule (“Rule 144”) during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1), or (ii) such time as all Registrable Securities have been sold pursuant to a registration statement or Rule 144. The Company shall notify the Purchaser promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the Requesting Holders not exceeding nine (9SEC and advise the Purchaser that the form of Prospectus contained in the Registration Statement or post-effective amendment thereto, as the case may be, at the time of effectiveness meets the requirements of Section 10(a) months and to comply with the provisions of the Securities Act or that it intends to file a Prospectus pursuant to Rule 424(b) under the Securities Act that meets the requirements of Section 10(a) of the Securities Act;
(ii) furnish to the Purchaser with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by registered under the registration statement and to each underwriter, if any, of such Registrable Securities Registration Statement such number of copies of a prospectus the Registration Statement and preliminary prospectus for delivery the Prospectus (including supplemental prospectuses) filed with the SEC in conformity conformance with the requirements of the Securities Act, Act and other such other documents as such Person the Purchaser may reasonably request request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities.Securities by the Purchaser;
(iii) make any necessary blue sky filings;
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate pay the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold expenses incurred by the Company and the other sellers shall be allocated between initial shares Purchaser in complying with Section 5, including, all registration and option shares as agreed orfiling fees, in FINRA fees, exchange listing fees, printing expenses, fees and disbursements of counsel for the absence Company, blue sky fees and expenses and the expense of agreement, on a pro rata basis among all any special audits incident to or required by any such holders on the basis registration (but excluding attorneys’ fees of the relative number of shares Purchaser and any and all underwriting discounts and selling commissions applicable to the sale of Registrable Securities each such holder has requested to be included in such registration.by the Purchaser);
(hv) Notwithstanding anything advise the Purchaser, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(vi) with a view to making available to the contrary hereinPurchaser the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Purchaser to sell Registrable Securities to the public without registration, the Company shall not be required to include any covenants and agrees to: (i) make and keep public information available, as such term is understood and defined in Rule 144, until the earlier of (A) such date as all of the Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then qualify to be sold without registration under resold immediately pursuant to Rule 144 or any other provision rule of similar effect during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (B) such date as all of the Registrable Securities shall have been resold pursuant to Rule 144 (and may be further resold without restriction); (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act; and (iii) furnish to the Purchaser upon request, as long as the Purchaser owns any Registrable Securities, (A) a written statement by the Company as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. The Company understands that the Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Purchaser is deemed an underwriter does not relieve the Company of any obligations it has hereunder.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (NANOPHASE TECHNOLOGIES Corp), Common Stock Purchase Agreement (NANOPHASE TECHNOLOGIES Corp)
Registration Procedures. (a) If and whenever In the case of each registration effected by the Company is required pursuant to this Agreement, the Company will keep each Holder advised in writing as to the initiation of each registration and as to the completion thereof. The Company agrees to use its best efforts to effect or cause such registration to permit the sale of the Registrable Securities covered thereby by the Holders thereof in accordance with the intended method or methods of distribution thereof described in such registration statement. In connection with any registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSecurities, the Company willshall, as expeditiously soon as reasonably possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement filed to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith included therein as may be necessary to keep effect and maintain the effectiveness of such registration statement effective for a period as may be requested required by the Requesting Holders not exceeding nine (9) months applicable rules and to comply with the provisions regulations of the Securities Act with respect Commission and the instructions applicable to the disposition form of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriterprovided, if anyhowever, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required obliged to maintain the effectiveness of the registration statement described in Article 2 longer than through the earlier of (A) to qualify to do business seven years from the date hereof or, if earlier, the second anniversary of the date on which the last of the Registrable Securities are issued or issuable as a foreign corporation in any jurisdiction wherepayment under the Note or upon exercise of the Warrant, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdictionthe date on which the Holder may sell all Registrable Securities then held by the Holder, or which may become issuable as payment under the Note or upon exercise of the Warrant, without restriction by the volume limitations of Rule 144(e) of the Securities Act or (C) such time as all Registrable Securities held by such Holder, or which may become issuable as payment under the Note or upon exercise of the Warrant, have been sold pursuant to take any action which would subject it a registration statement), and furnish to general or unlimited service the holders of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such the Registrable Securities covered by thereby copies of any such supplement or amendment prior to this being used and/or filed with the Commission;
(iii) promptly notify the Holders of Registrable Securities to be included in a registration statement hereunder, the sales or placement agent, if any, therefor and the managing underwriter of the securities being sold, and confirm such advice in writing, (A) when such registration statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to be registered such registration statement or qualified with or approved by such other governmental agencies or authorities (includingany post-effective amendment, without limitation, state securities commissions) as may be necessary to enable when the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A)same has become effective, (B) and of the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of any proceedings for that purpose, (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities covered by for sale in any jurisdiction or the initiation or threatening of any proceeding for such registration statementpurpose or (D) if, to the Company’s knowledge, it shall be the case, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii)Act, if the Company becomes aware that the prospectus included in such registration statementstatement or prospectus, as then or any document incorporated by reference in effectany of the foregoing, includes contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; ;
(iv) use its best efforts to prepare obtain the withdrawal of any order suspending the effectiveness of such registration statement or any post-effective amendment thereto or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction at the earliest practicable date;
(v) furnish to each Holder of Registrable Securities to be included in such registration statement hereunder, each placement or sales agent, if any, therefor and file an appropriate each underwriter, if any, thereof a conformed copy of such registration statement, each such amendment and supplement thereto (in each case excluding all exhibits and documents incorporated by reference) and such number of copies of the registration statement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by such holder, agent or supplement underwriter, as the case may be) of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the requirements of the Securities Act, as such Holder, agent, if any, and underwriter, if any, may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder sold by such agent or underwritten by such underwriter and to permit such Holder, agent and underwriter to satisfy the prospectus delivery requirements of the Securities Act;
(vi) use its best efforts to (A) register or qualify the Registrable Securities to be included in such registration statement under such other securities laws or blue sky laws of such states of the United States or the District of Columbia to be designated by the Holders of a majority of such Registrable Securities participating in such registration and each placement or sales agent, if any, therefor and underwriter, if any, thereof, as any Holder and each underwriter, if any, of the securities being sold shall reasonably request (provided, that the Company shall not be required to use its best efforts to register or qualify the Registrable Securities in more than 10 such jurisdictions unless the expenses thereof are borne by the Holders requesting such efforts), (B) keep such registrations or qualifications in effect and comply with such laws so as to permit, as to a registration statement filed under Article 2 above, the continuance of offers, sales and dealings therein in such jurisdictions for the same period after the initial effective date of the registration statement filed under the Securities Act as described in Section 5(a)(ii) above or, as to a registration statement filed under Article 3 above, for a period of 90 days after the effective date of the registration statement, or if underwritten, as long as may be necessary to enable the underwriter to complete its distribution of the Registrable Securities pursuant to such prospectus registration statement and (C) take any and all such actions as may be reasonably necessary or advisable to cause enable such amendment Holder, agent, if any, and underwriter to consummate the disposition in such jurisdictions of such Registrable Securities; provided, however, that in order to fulfill the foregoing obligations under this Section 5(a)(vi), the Company shall not (unless otherwise required to do so in any jurisdiction) be required to (1) qualify generally to do business as a foreign company or supplement a broker-dealer, (2) execute a general consent to become effectiveservice of process or (3) subject itself to taxation; and
(vii) furnish, at the request of any a majority of the Holders participating in the registration, on the date that such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter Registrable Securities are delivered to the purchasers underwriters for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and if permitted by applicable accounting standards, to the Holders requesting registration of Registrable Securities.
(b) The Company may require each Holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such Holder and such Holder’s method of distribution of such Registrable Securities as the Company may from time to time reasonably request in writing. Each such Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by such Holder to the Company or of the occurrence of any event in either case as a result of which any prospectus relating to such registration contains or would contain an untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or omits to state any material fact regarding such Holder or the distribution of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Holder or the distribution of such Registrable Securities, such prospectus shall not include an untrue statement of or 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.
(viic) Otherwise use its best efforts to Each of the Holders will comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation Act with the underwriters, if any, respect to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the any registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationCompany.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Spectre Gaming Inc), Registration Rights Agreement (Spectre Gaming Inc)
Registration Procedures. In the case of each registration, qualification or compliance effected by the Company pursuant to this Agreement, the Company will keep each Holder advised in writing as to the initiation of each registration, qualification and compliance and as to the completion thereof. At its expense the Company will:
(a) If prepare and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possible:
(iwithin thirty (30) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company or in any event as soon thereafter as possible) (or in the case of a registration pursuant to Section 2.1, such filing to be made within ninety thirty (9030) days after the end initial request of such period if such period ends during the first month one or the last month of the Company’s fiscal year), more Initiating Holders or in any event as soon thereafter as possible) file with the Commission a the requisite registration statement with respect to effect such Registrable registration (including such audited financial statements as may be required by the Securities Act) and thereafter use its best efforts to cause such registration statement to become and remain effective; provided effective in compliance with the provisions of the Securities Act, provided, that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto.;
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements (including, without limitation, any document incorporated by reference or deemed to be incorporated by reference therein) to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.;
(iiic) Furnish furnish to each holder seller of Registrable Securities covered by the such registration statement and to each underwriterHolder and each underwriter or agent, if any, of the securities being sold by such Registrable Securities seller such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits and, upon request, all schedules, appendixes and exhibits to any agreement or document included in any such exhibit), such number of copies of a the prospectus and contained in such registration statement (including each preliminary prospectus for delivery (or supplement thereto) and any summary prospectus) and any other prospectus (or supplement thereto) filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller and underwriter or agent, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(ivd) Use use its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each any seller thereof and any underwriter or agent of the securities being sold by such seller and any Holder shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller and underwriter or agent to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsseller, except that provided, that, the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then paragraph (d) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use use its best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vif) Immediately notify each seller of Registrable Securities covered by such registration statementstatement and each Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, immediately upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus (including any amendment or supplement thereto) included in such registration statement, 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 statement therein not misleading in the light of the circumstances then existing; use its best efforts to prepare under which they were made, and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such sellerseller or Holder promptly prepare and furnish to such seller or Initiating Holder and each underwriter or agent, deliver if any, a reasonable number of copies of a supplement to, or an amended or supplemental amendment of, such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.under which they were made;
(viig) Otherwise provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement;
(h) use its best efforts to comply with list all applicable rules and regulations Registrable Securities covered by such registration statement on any securities exchange on which any of the securities of the same class as the Registrable Securities are then listed and, if not so listed, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use its reasonable best efforts to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ “national market system security” within the meaning of Rule 11Aa2-1 of the Commission and make generally available to its security holdersor, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if anyfailing that, to list secure NASDAQ authorization for such Registrable Securities on each securities exchange as they may reasonably designateand, which securities exchanges shall be acceptable to without limiting the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters generality of the type customarily covered by foregoing, to arrange for at least two market makers to register as such letters as the Requesting Holders reasonably request in order with respect to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3NASD.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (PRN Corp)
Registration Procedures. (a) If and whenever In the case of each registration, qualification or compliance effected by the Company is required pursuant to use its best efforts to effect or cause this Registration Rights Agreement, the registration Company will keep the holders of any the Registrable Securities under advised in writing as to the Securities Act initiation of each registration, qualification and compliance and as provided in Section 6.1 or 6.2 hereofto the completion thereof. At its expense, the Company will, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), 2.5.1 prepare and file with the Commission a registration statement with respect to such Registrable Securities securities and use its best commercially reasonable efforts to cause such registration statement to become and remain effective; provided thateffective until, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish with respect to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected Registration Statement filed pursuant to Section 6.2 at 2.1, two years after the date such Registration Statement is declared effective, and with respect to any time prior other registration statement filed pursuant to this Registration Rights Agreement, the effective date distribution described in such registration statement has been completed;
2.5.2 provide the holders of the Registrable Securities with a reasonable opportunity to review the registration statement before the filing of the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act Commission;
2.5.3 with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish an Underwritten Public Offering, furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities underwriter such number of copies of a prospectus and prospectus, including a preliminary prospectus for delivery prospectus, in conformity with the requirements of the Securities Act, and such other documents as such Person underwriter may reasonably request in order to facilitate the public sale of the shares by such underwriter and promptly furnish to each underwriter and the holders of Registrable Securities notice of any stop-order or similar notice issued by the Commission or any state agency charged with the regulation of securities, and notice of Nasdaq or securities exchange listing;
2.5.4 furnish, without charge, to the each seller of Registrable Securities covered by such registration statement, such number of conformed copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus and, in each case, including all exhibits thereto and documents incorporated by reference therein) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities.Securities or other shares of Common Stock owned by such seller;
(iv) Use 2.5.5 promptly furnish to each underwriter, if any, and the holders of Registrable Securities notice of any stop-order or similar notice issued by the Commission or any state agency charged with the regulation of securities and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
2.5.6 use its reasonable best efforts to register or qualify such the Registrable Securities or other shares of Common Stock covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller the holders of the Registrable Securities shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect and to do any and all other acts and things which may be reasonably necessary or advisable to enable such seller the holders of the Registrable Securities to consummate the disposition in such jurisdictions of any such Registrable Securities or other shares of Common Stock owned by the holders of the Registrable Securities owned by such seller in such jurisdictionsSecurities; PROVIDED, except HOWEVER, that the Company shall not for any such purpose be required to (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(iv)2.5.6, it is not then so qualified, or (Bii) to subject itself to taxation in any such jurisdiction, jurisdiction or (Ciii) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition 2.5.7 notify each holder of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any a time when a prospectus relating thereto to such Registrable Securities is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if occurrence of any event known to the Company becomes aware that as a result of which the prospectus included in such registration statement, as then in effect, includes contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effectiveunder which they were made; and, at the request of any holder of Registrable Securities, the Company shall prepare and furnish such seller, deliver holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.under which they were made;
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of 2.5.8 during the period covered thereby (one hundred eighty (180) calendar days in case when the period covered corresponds prospectus is required to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 delivered under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offeringpromptly file all documents required to be filed with the Commission pursuant to Sections 12(a), without the consent 13(c), 14 or 15(d) of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date Securities Exchange Act of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities1934, as amended (the case may be, or securities convertible into or exchangeable or exercisable for any "Exchange Act"); and
2.5.9 on the prior written request of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting Securities, file such prospectus supplements or post-effective amendments to be included in such registration may elect, in writing, prior to the effective date of the any registration statement filed pursuant to Article II hereof as may be required in connection with such registration, not to register such securities in connection with such registration, unless any transfer of the rights under this Registration Rights Agreement by such holder has agreed with the Company or the managing underwriter to limit its right as permitted under this Section 6.32.9 hereof.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Reimbursement Agreement (Industrial Holdings Inc), Reimbursement Agreement (Industrial Holdings Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 4.1, 4.2 and 4.3, the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of and comment by such counsel; and provided, further, counsel (it being understood that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior counsel to the effective date of the registration statement relating thereto.Selling Holders will conduct its review and provide any comments promptly);
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Selling Holder;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver Selling Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading;
(xi) use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker;”
(xiv) cooperate with any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the light offering, marketing or selling of the circumstances then existing.Registrable Securities;
(viixvi) Otherwise have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA;
(xx) otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after all reporting requirements under the close rules and regulations of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Exchange Act.; and
(viiixxii) Use its use reasonable best efforts to take any action requested by the Selling Holders, including any action described in cooperation with the underwritersclauses (i) through (xxi) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi4.5(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c4.5(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all give such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.notice, any
Appears in 2 contracts
Sources: Shareholder Agreement (Intrawest Resorts Holdings, Inc.), Shareholder Agreement (Intrawest Resorts Holdings, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Purchased Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, the Company will, as expeditiously as possible:
(i) Prepare prepare and, in any event within sixty (60) calendar 90 days after the end of the period within which requests a request for registration may be is given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission SEC a registration statement with respect to such Registrable Purchased Securities and use its best efforts to cause such registration statement to become and remain effectiveeffective as promptly as possible; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, furtherhowever, that the Company may discontinue any registration of its securities that which is being effected pursuant to Section 6.2 an incidental registration at any time anytime prior to the effective date of the registration statement relating thereto.;
(ii) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period so long as may be requested by the Requesting Holders not exceeding nine requesting holders of the Purchased Securities shall request, but in no event longer than six (96) months months, and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, seller of such Registrable Purchased Securities such number of copies of a such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and preliminary prospectus for delivery summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Purchased Securities by such seller;
(iv) Use use its best efforts to register or qualify such Registrable Purchased Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Purchased Securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(ivclause (iv), it is would not then be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its best efforts to cause such Registrable Purchased Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Purchased Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately notify each seller of Registrable any such Purchased Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii)clause (ii) of this Section, if of the Company becomes Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any 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; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver prepare and furnish to such seller a reasonable number of copies of an amended or of supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Purchased Securities, such prospectus shall 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.;
(vii) Otherwise otherwise use its best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as practicable, reasonably practicable (but not later more than ninety (90fifteen months) calendar days after the close effective date of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company)registration statement, an earnings statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act.Act and the rules and regulations promulgated thereunder;
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain list such Purchased Securities on any securities exchange or listing agency on which the Common Stock is then listed or quoted, if such Purchased Securities are not already so listed or quoted and if such listing or quotation is then permitted under the rules of such exchange or agency, and to provide a “cold comfort” letter from the independent public accountants transfer agent and registrar for the Company in customary form and covering such matters of the type customarily Purchased Securities covered by such letters as registration statement not later than the Requesting Holders reasonably request in order to effect an Underwritten Offering effective date of such Registrable Securities.
(x) Execute and deliver all instruments and documents registration statement; enter into such customary agreements (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain as sellers of a majority of such certificates and opinions as Purchased Securities or the Requesting Holders underwriters, if any, reasonably request in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Purchased Securities.;
(bix) Each holder make available for inspection by any seller of Registrable such Purchased Securities willcovered by such registration statement, upon receipt of by any notice from the Company underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the happening of any event Company, and cause all of the kind described in Section 6.3(a)(vi)Company's officers, forthwith discontinue disposition of the Registrable Securities pursuant directors and employees to the registration statement covering supply all information reasonably requested by any such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offeringseller, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (attorney, accountant or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed agent in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”x) the underwriters have committed Company may defer the demand for registration under Section 9(a) hereof, suspend the use of a registration statement filed under Section 9(a) and (b) hereof and already effective, or not cause a registration statement filed under Section 9(a) or (b) hereof to purchasebecome effective, the underwriting agreement may grant the underwriters an option to purchase for a period of up to a number of additional shares of stock ninety (the “option shares”90) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder days in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision majority of the Securities ActBoard of Directors determines that such deferral is in the best interests of the Company. Such a deferral may only be used once in any one year period.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nam Corp), Stock Purchase Agreement (Insurance Services Office Inc)
Registration Procedures. (a) If and whenever In the case of each registration, qualification, or compliance effected by the Company is required pursuant to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof4(a), the Company willwill keep each Holder including securities therein reasonably advised in writing (which may include e-mail) as to the initiation of each registration, qualification, and compliance and as expeditiously to the completion thereof. In addition, the Company hereby agrees as possible:follows with respect to the Registration Statement.
(i) Prepare andThe Company will use its commercially reasonable efforts to cause the Registration Statement to become and remain effective at least for a period ending with the first to occur of (A) the sale by the Holders of all Registrable Securities covered by the Registration Statement, (B) the availability under Rule 144 for the Holders to immediately, freely resell without restriction or filing with the SEC all Registrable Securities covered by the Registration Statement, or (C) the date that is two years after the SEC Effective Date (provided, however, that if the Company files the Registration Statement on Form S-1 and subsequently becomes eligible to use Form S-3, it may file a post-effective amendment to such Form S-1 on Form S-3 prior to the end of such period and use its commercially reasonable efforts to cause the Registration Statement as amended to become effective until the end of such period) (in any event within sixty (60) calendar days such case, the “Effectiveness Period”). At any time after the end of the period within which requests for registration may be given to Effectiveness Period, if (a) the Holders Beneficially Own Registrable Securities representing more than 10% of the fully diluted equity interests in the Company (or within ninety (90) days after calculated giving effect to the end exercise of such period if such period ends during the first month or the last month all outstanding options, warrants and other rights to purchase to acquire any Common Stock of the Company’s fiscal year)) or (b) any nominee designated by the Investors pursuant to Section 2(a) is a member of the Board, then (x) as promptly as reasonably practicable after the written request of Holders of greater than 50% of the Registrable Securities, the Company shall file with the Commission a SEC another shelf registration statement with respect on Form S-1 (or, if the Company is eligible to use such form, Form S-3) relating to the registration of the offer and resale by the Holders of all of the Registrable Securities Securities, (y) the provisions of this Agreement (including without limitation the provisions of Section 4(a) and use its best efforts Section 4(b)) shall apply to cause such registration statement and (z) such registration statement shall be deemed to become and remain effective; provided that, in be the case of a registration provided for Registration Statement (as defined in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies 4(a)) for purposes of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating theretothis Agreement.
(ii) Prepare If the Registration Statement becomes subject to review by the SEC, the Company will promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the SEC.
(iii) The Company will prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement the Registration Statement and the any prospectus used in connection therewith as may be reasonably necessary to keep such registration statement the Registration Statement effective for a period as may be requested by during the Requesting Holders not exceeding nine (9) months Effectiveness Period, and to will comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Registration Statement during such period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statementRegistration Statement.
(iiiiv) Furnish The Company will furnish, without charge, to each holder Holder (A) a reasonable number of Registrable Securities covered copies of the Registration Statement (including any exhibits thereto other than exhibits incorporated by the registration statement reference), each amendment and to each underwritersupplement thereto as such Holder may request, if any, of such Registrable Securities (B) such number of copies of a the prospectus included in such Registration Statement (including each preliminary prospectus and preliminary any other prospectus for delivery filed under Rule 424 under the Securities Act) as such Holder may request, in conformity with the requirements of the Securities Act, and (C) such other documents as such Person Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable SecuritiesSecurities owned by such Holder, but only during the Effectiveness Period.
(ivv) Use The Company will use its best commercially reasonable efforts to register or qualify such the Registrable Securities covered by such registration statement under such other applicable securities or blue sky laws of such jurisdictions as each seller shall any Holder reasonably request, requests as may be necessary for the marketability of the Registrable Securities (such request to be made by the time the Registration Statement is deemed effective by the SEC) and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsHolder; provided, except however, that the Company shall not for any such purpose be required to (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(ivparagraph (v), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereofjurisdiction.
(vi) Immediately As promptly as practicable after becoming aware of such event, the Company will notify each seller Holder of such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within of the appropriate period mentioned in Section 6.3(a)(ii), happening of any event which comes to the Company’s attention if the Company becomes aware that as a result of such event the prospectus included in such registration statement, as then in effect, includes the Registration Statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, and the circumstances then existing; use its best efforts Company shall promptly prepare and furnish to such Holder a supplement or amendment to such prospectus (or prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at reports under the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, unless suspension of the use of such prospectus otherwise is authorized herein or in the light event of a Blackout Period, in which case no supplement or amendment need be furnished (or Exchange Act filing made) until the circumstances then existingtermination of such suspension or Blackout Period.
(vii) Otherwise use its best efforts The Company will comply, and continue to comply during the period that the Registration Statement is effective under the Securities Act, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission and make generally available SEC with respect to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close disposition of all securities covered by the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities ActRegistration Statement.
(viii) Use its best efforts in cooperation with As promptly as practicable after becoming aware of such event, the underwriters, if any, to list such Company will notify each Holder of Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable being offered or sold pursuant to the CompanyRegistration Statement of the issuance by the SEC of any stop order or other suspension of effectiveness of the Registration Statement.
(ix) In The Company will permit the event Holders of Registrable Securities being included in the offering is an Underwritten OfferingRegistration Statement and their legal counsel, use its best efforts at such Holders’ sole cost and expense to obtain review and have a “cold comfort” letter from reasonable opportunity to comment on the independent public accountants for Registration Statement and all amendments and supplements thereto at least two Business Days prior to their filing with the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable SecuritiesSEC.
(x) Execute The Company will make available for inspection by any Holder and deliver any Inspector retained by such Holder, at such Holder’s sole expense, all instruments records as shall be reasonably necessary to enable such Holder to exercise its due diligence responsibility, and documents (including in an Underwritten Offering an underwriting agreement in customary form) cause the Company’s officers, directors, and take employees to supply all information which such other actions and obtain such certificates and opinions as the Requesting Holders Holder or any Inspector may reasonably request in order to effect an underwritten public offering for purposes of such Registrable Securities.
(b) Each holder of Registrable Securities willdue diligence; provided, upon receipt however, that such Holder shall hold in confidence and shall not make any disclosure of any notice from record or other information which the Company determines in good faith to be confidential, and of which determination such Holder is so notified at the time such Holder receives such information, unless (w) such Holder had, or obtained, knowledge of such information without violation of or protection under any agreements with the Company or, to its knowledge any third party, (x) the disclosure of such record is reasonably necessary to avoid or correct a misstatement or omission in the Registration Statement and a reasonable time prior to such disclosure the Holder shall have informed the Company of the happening need to so correct such misstatement or omission and the Company shall have failed to correct such misstatement of omission, (y) the release of such record is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (z) the information in such record has been made generally available to the public other than by disclosure in violation of this Agreement or any event other agreement. The Company shall not be required to disclose any confidential information in such records to any Inspector until and unless such Inspector shall have entered into a confidentiality agreement with the Company with respect thereto, containing terms substantially similar to those set forth in this Section 4(b)(x), which agreement shall permit such Inspector to disclose records to the Holder who has retained such Inspector. Each Holder agrees that it shall, upon learning that disclosure of such records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the records deemed confidential. The Company shall hold in confidence and shall not make any disclosure of information concerning a Holder provided to the Company pursuant to this Agreement unless (A) disclosure of such information is reasonably necessary to comply with federal or state securities laws, (B) disclosure of such information to the SEC’s Staff of the kind described Division of Corporation Finance is reasonably necessary to respond to comments raised by such staff in Section 6.3(a)(vi)its review of the Registration Statement, forthwith discontinue (C) disclosure of such information is reasonably necessary to avoid or correct a misstatement or omission in the Registration Statement, (D) release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (E) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Holder and allow such Holder, at such Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(xi) The Company will use its commercially reasonable efforts to cause all the Registrable Securities covered by the Registration Statement to be listed or quoted on the principal securities market on which securities of the same class or series issued by the Company are then listed or traded.
(xii) The Company will provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities at all times.
(xiii) The Company will cooperate with the Holders of Registrable Securities being offered pursuant to the Registration Statement to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates to be in such denominations or amounts as the Holders may reasonably request and registered in such names as the Holders may request.
(xiv) The Company will take all other reasonable actions necessary to expedite and facilitate disposition by the Holders of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distributionRegistration Statement, including any sale pursuant without limitation making its chief executive officer, president, chief financial officer and other appropriate officers and personnel available to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except participate in connection marketing efforts with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition respect to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationregistered underwritten public offering.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Allis Chalmers Energy Inc.), Investors Rights Agreement (Allis Chalmers Energy Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 3.1 and 3.2, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event prepare and (within sixty (60) calendar 60 days after the end of the period within which requests for registration may be given to the Company (or in any event as soon thereafter as possible; PROVIDED that, in the case of a registration pursuant to Section 3.1, such filing to be made within ninety (90) 60 days after the end initial request of such period if such period ends during the first month an Initiating Holder of Registrable Securities or the last month of the Company’s fiscal year), in any event as soon thereafter as possible) file with the Commission a the requisite registration statement with respect to effect such Registrable registration (including such audited financial statements as may be required by the Securities Act) and thereafter use its best efforts to cause such registration statement to become and remain effective; provided that, in PROVIDED FURTHER that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereof, statement relating thereto; PROVIDED FURTHER that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period until the earlier of (x) in accordance with the intended methods case of disposition by a registration pursuant to Section 3.1, the seller or sellers thereof set forth in expiration of 120 days after such registration statement.statement becomes effective, or (y) in the case of a registration pursuant to Section 3.2, the expiration of 90 days after such registration statement becomes effective;
(iii) Furnish furnish to each holder seller of Registrable Securities covered by the such registration statement and to each underwriter, if any, of the securities being sold by such Registrable Securities seller 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 a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(iv) Use use its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities or blue sky or similar laws of such jurisdictions as each any seller thereof and any underwriter of the securities being sold by such seller shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately notify furnish to each seller of Registrable Securities covered by such registration statementa signed counterpart, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement addressed to such prospectus seller and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.of
Appears in 2 contracts
Sources: Revolving Credit Agreement (Aps Healthcare Inc), Warrantholders Rights Agreement (Aps Healthcare Inc)
Registration Procedures. In connection with the registration ----------------------- obligations of the Company under Sections 3 and 4, the Company shall:
(a) If prepare and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission SEC a registration statement Registration Statement with respect to such Registrable Securities on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of the Registrable Securities in accordance with the intended methods of distribution thereof, and use its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(iib) Prepare prepare and file with the Commission such SEC amendments (including and post-effective amendments) amendments to such Registration Statement and such amendments and supplements to such registration statement and the prospectus Prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective for a period or as may be requested required by the Requesting Holders not exceeding nine rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder necessary to keep such Registration Statement effective (9i) months in the case of an Underwritten Offering, until each underwriter has completed the distribution of all securities purchased by it, and (ii) in the case of any other registration, until the Registrable Securities covered thereby cease to be Registrable Securities, and cause the Prospectus as so amended and supplemented to be filed pursuant to Rule 424 under the Securities Act, and otherwise use reasonable best efforts to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during Registration Statement until such period time as is specified in accordance with clause (i) or (ii) above, as the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.case may be;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, Holder of such Registrable Securities such number of copies of a prospectus such Registration Statement and preliminary prospectus for delivery in conformity with the requirements of the Securities Acteach amendment and post- effective amendment thereto, any Prospectus or Prospectus supplement and such other documents as such Person Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in Section 8(b)) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(ivd) Use its use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement Registration Statement under such other securities or blue sky laws of such jurisdictions as each seller Holder shall reasonably request, and to do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsHolder, except that the Company shall not be required for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv7(d), it is would not then be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause notify each Holder of any such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statementRegistration Statement, at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities Act within the appropriate applicable period mentioned referred to in Section 6.3(a)(ii7(b), if that the Company becomes has become aware that the prospectus Prospectus included in such registration statementRegistration Statement, as then in effect, includes an untrue statement of a the material fact or omits to state any 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; use its best efforts existing (the period during which the Holders are required in such case pursuant to Section 8(b) to refrain from effecting public sales or distributions of Registrable Securities being referred to as a "Section 7(e) Period"), and prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; andHolder, at the request of any such selleras soon as ------------------- reasonably practicable, deliver a reasonable number of copies of an amended amendment to such Registration Statement or supplemental prospectus supplement to such related Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus Prospectus shall 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.;
(viif) Otherwise use its best efforts notify each Holder of Registrable Securities covered by such Registration Statement at any time,
(i) when the Prospectus or any Prospectus supplement or post- effective amendment has been filed and, with respect to comply with all applicable rules and regulations the Registration Statement or any post-effective amendment, when the Registration Statement or such post-effective amendment has become effective;
(ii) of the Commission and issuance by the SEC of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation of any proceedings for such purposes; and
(iii) of the receipt of the Company of any written notification of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose;
(g) make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), stockholders an earnings statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act., provided that the Company shall be deemed to have complied with this Section 7(g) if it has complied with Rule 158 under the Securities Act;
(viiih) Use its use reasonable best efforts in cooperation (i) to cause all Conversion Shares and Warrant Shares covered by such Registration Statement to be listed on any securities exchange or automated quotation system on which the Common Stock is then listed, if such Conversion Shares and Warrant Shares are not already so listed and if such listing is then permitted under the rules of such exchange or automated quotation system, (ii) to provide a transfer agent and registrar for Registrable Securities covered by such Registration Statement no later than the effective date of such Registration Statement and (iii) prepare and file with the underwritersSEC, within the time period specified by Section 12(g) of the Exchange Act, a Registration Statement on Form 8-A registering the Preferred Shares and the Warrants if any, such filing is required pursuant to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to Section 12(g) of the Company.Exchange Act;
(ixi) In if the event the offering is registration involves an Underwritten Offering, enter into a customary underwriting agreement and in connection therewith:
(i) make such representations and warranties to the underwriters in form, substance and scope as are customarily made by issuers to underwriters in comparable Underwritten Offerings;
(ii) use its reasonable best efforts to obtain a “opinions of counsel to the Company (in form, scope and substance reasonably satisfactory to the managing underwriters), addressed to the underwriters, and covering the matters customarily covered in opinions requested in comparable Underwritten Offerings;
(iii) use reasonable best efforts to obtain "cold comfort” letter " letters and bring-downs thereof from the Company's independent certified public accountants for addressed to the Company underwriters, such letters to be in customary form and covering such matters of the type customarily covered in "cold comfort" letters by such letters as the Requesting Holders reasonably request independent accountants in order to effect an connection with Underwritten Offering of such Registrable Securities.Offerings; and
(xiv) Execute deliver such documents and deliver all instruments and documents (including certificates as may be reasonably requested by the managing underwriters to evidence compliance with any customary conditions contained in an Underwritten Offering an the underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.agreement;
(bj) Each holder cooperate with the Holders of Registrable Securities willcovered by such Registration Statement and the managing underwriter or underwriters or agents, upon receipt if any, to facilitate the timely preparation and delivery of certificates (not bearing any notice from restrictive legends) representing the Company securities to be sold under such Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters or agents, if any, or such Holders may request;
(k) if reasonably requested by the managing underwriter or underwriters or a Holder of Registrable Securities being sold in connection with an Underwritten Offering, incorporate in a Prospectus supplement or post- effective amendment to the happening Registration Statement such information as the managing underwriters and the Holders of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition a Majority of the Registrable Securities pursuant being sold agree should be included therein relating to the registration statement covering plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the principal amount of Registrable Securities until being sold to such holder’s receipt underwriters, the purchase price being paid therefor by such underwriters and any other terms of the copies Underwritten Offering of the supplemented Registrable Securities to be sold in such offering and make all required filings of such Prospectus supplement or amended prospectus contemplated by Section 6.3(a)(vi).post-effective amendment as promptly as practicable upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(cl) If if reasonably requested by the managing underwriter or underwriters or a registration pursuant to Section 6.1 or 6.2 hereof involves Holder of Registrable Securities being sold in an Underwritten Offering, each holder cause appropriate representatives of the Company to participate in any "road shows" or similar marketing activities;
(m) in the event of the issuance of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in the Registration Statement for sale in any jurisdiction, use reasonable best efforts promptly to obtain the withdrawal of such registrationstop order or other order, not and the period for which the Registration Statement shall be kept effective shall be extended by a number of days equal to effect the number of days between the issuance and withdrawal of any public sale stop order or distributionother order (a "Section 7(m) Period"); and -------------------
(n) disclose in each Registration Statement that, including any sale pursuant to Rule 144 416 under the Securities Act, such Registration Statement shall register the offering of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative indeterminate number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything Common Stock which may become issuable pursuant to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision antidilution provisions of the Securities ActPreferred Shares and the Warrants.
Appears in 2 contracts
Sources: Registration Rights Agreement (Itc Holding Co Inc), Registration Rights Agreement (Itc Deltacom Inc)
Registration Procedures. (a) If and whenever In connection with the registration of Company Stock pursuant to Section 3, the Company is required shall (subject to Sections 3.2(b) and 3.3(b)) use its reasonable best efforts to effect or cause the registration and sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, intended method(s) of distribution thereof as expeditiously as possiblepracticable, and in connection therewith:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the The Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), shall prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided, however, that such one hundred twenty (120) day period shall be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions extended for a period of the Securities Act with respect time equal to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth Holder whose Registrable Securities are included in such registration statementrefrains, at the request of an Underwriter, from selling any securities included in such registration.
(iiiii) Furnish The Company shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to each holder of Holder whose Registrable Securities covered by the registration statement and to each underwriterare included in such registration, if any, copies of such Registrable Securities Registration Statement as proposed to be filed, each amendment and supplement to such number of copies of a Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus and included in such Registration Statement (including each preliminary prospectus for delivery in conformity with the requirements of the Securities Act, prospectus) and such other documents as are included in such Person registration as legal counsel for such Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictionsHolder.
(iii) After the filing of a Registration Statement, except that the Company shall not for promptly, and in no event more than two (2) business days after such filing, notify each Holder whose Registrable Securities are included in such Registration Statement of such filing, and shall further notify each such Holder promptly in writing in all events within two (2) business days of the occurrence of any such purpose be required of the following: (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or when such Registration Statement becomes effective; (B) when any post-effective amendment to subject itself to taxation in any such jurisdiction, or Registration Statement becomes effective; (C) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to take prevent the entry of such stop order or to remove it if entered); and (D) any action which would subject it request by the Commission for (1) any amendment or supplement to general such Registration Statement or unlimited service any prospectus relating thereto or (2) additional information of process in any the occurrence of an event requiring the preparation of a supplement or amendment to such jurisdiction where it is not then prospectus so subject.
(v) Use its best efforts that, as thereafter delivered to cause such Registrable Securities the purchasers of the securities covered by such registration statement to be registered or qualified with or approved by Registration Statement, such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes will not contain an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading misleading. The Company shall promptly make available to each Holder whose Registrable Securities are included in such Registration Statement any such supplement or amendment.
(iv) Before filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, the Company shall furnish to each Holder whose Registrable Securities are included in such Registration Statement and to the legal counsel for any such Holders, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such Holder and their legal counsel with a reasonable opportunity to review such documents and comment thereon.
(v) The Company shall use its reasonable best efforts to (A) register or qualify the Registrable Securities under such securities or “blue sky” Laws of such jurisdictions (domestic or foreign) as the Holders whose Registrable Securities are included in such Registration Statement (in light of the circumstances then existing; use its best efforts to prepare intended plan of distribution) may reasonably request and file an appropriate amendment or supplement to (B) take such prospectus and action necessary to cause such amendment Registrable Securities covered by the Registration Statement to be registered with or supplement to become effective; and, at the request of any approved by such seller, deliver a reasonable number of copies of an amended or supplemental prospectus other Governmental Entity as may be necessary so that, as thereafter delivered 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 such Holders to consummate the purchasers disposition of such Registrable SecuritiesSecurities in such jurisdictions; provided, such prospectus however, that the Company shall not include an untrue statement of a material fact or omit to state a material fact be required to qualify generally to do business in any jurisdiction where it would not otherwise be stated therein required to qualify but for this paragraph or necessary subject itself to make the statements therein taxation in any such jurisdiction or take any action which would subject it to general service of process in any such jurisdiction where it is not misleading in the light of the circumstances then existingso subject.
(viivi) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety The Company shall enter into customary agreements (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwritersincluding, if anyapplicable, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders are reasonably request required in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities. No Holder whose Registrable Securities are included in such Registration Statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Holder’s organization, good standing, authority, title to such Holder’s Common Stock, lack of conflict of such sale with such Holder’s material agreements and organizational documents, with respect to written information relating to such Holder that it has furnished in writing expressly for inclusion in such Registration Statement, and any other customary representations or warranties requested by the Underwriter(s) selected for such underwriting.
(bvii) Each holder The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer of the Company and other appropriate officers and members of the management of the Company shall cooperate reasonably in any offering of Registrable Securities willhereunder, upon receipt of any notice from which cooperation shall include (A) the Company preparation of the happening of any event of the kind described Registration Statement with respect to such offering and all other offering materials and related documents, (B) participation in Section 6.3(a)(vimeetings with Underwriter(s), forthwith discontinue disposition of prospective purchasers, attorneys, accountants and the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Holders whose Registrable Securities are included in such registration, including participation in customary road shows, investor conferences and other similar presentations and (C) facilitating the timely preparation and delivery of certificates representing Registrable Securities to be sold and not to effect bearing any public sale or distributionrestricted legends.
(viii) The Company shall make reasonably available for inspection by the Holders whose Registrable Securities are included in such Registration Statement, including any sale Underwriter(s) participating in any disposition pursuant to Rule 144 under such Registration Statement and any attorney, accountant or other professional retained by such Holders or any Underwriter, all information reasonably requested by any Holder whose Registrable Securities are included in such Registration Statement or any Underwriter, and cause the Company’s officers, directors and employees to supply all information so requested by any of them in connection with such Registration Statement.
(ix) The Company shall furnish to each Holder whose Registrable Securities are included in any Registration Statement a signed counterpart, addressed to such Holder, of (A) any opinion of counsel to the Company delivered to any Underwriter and (B) any comfort letter from the Company’s independent registered public accountants delivered to any Underwriter, to the extent permitted by the professional standards governing the accounting profession at the time.
(x) The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than and make available to its stockholders, as part of such Underwritten Offering)soon as practicable, without the consent of the managing underwriter, during an earnings statement covering a period commencing seven of twelve (712) days before months, beginning as soon as practicable (and ending one hundred eighty in any event within three (1803) days (or such lesser number as the managing underwriter shall designate) months after the effective date of such registrationthe Registration Statement), which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(dxi) The Company shall use its best efforts to cause all Holders’ Registrable Securities included in any registration to be listed (or continue 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.
(xii) If any such Registration Statement or comparable filing refers to any Holder by name and if such Holder, in its sole and exclusive judgment, is or might be deemed to be an underwriter or a controlling Person of the Company, such Holder shall have the right to require (A) the insertion therein of language, in form and substance reasonably satisfactory to such Holder and presented to the Company in writing, to the effect that the holding by such Holder of such shares of Company Stock is not to be construed as a recommendation by such Holder of the investment quality of the Company’s securities covered thereby, and that such holding does not imply that such Holder shall assist in meeting any future financial requirements of the Company, or (B) in the event that such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal or state statute then in force, the deletion of the reference to such Holder.
(b) The Company shall bear all costs and expenses incurred in connection with any registration pursuant to Section 6.1 3, and all expenses incurred in performing or 6.2 involves an Underwritten Offeringcomplying with its other obligations under this Agreement, whether or not the Company agreesRegistration Statement becomes effective, if so required by the managing underwriter, not to effect any public sale including: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or distribution “blue sky” Laws (including fees and disbursements of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except counsel in connection with a stock option plan, stock purchase plan, savings blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.4(a)(xi); (vi) Financial Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for independent registered public accountants retained by the Company (including the expenses or similar plan, costs associated with the delivery of any opinions or an acquisition, merger or exchange offer.
(e) If a registration comfort letters requested pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, 3.4(a)(ix); (g) the fees and expenses of any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to special experts retained by the effective date of the registration statement filed Company in connection with such registration, not ; (viii) the reasonable fees and expenses of legal counsel (one firm) selected by Majority Holders; and (ix) fees and expenses incurred by the Company or by any Underwriter(s) if and to register such securities the extent that any Holder would otherwise be responsible therefor in connection with the marketing and disposition of Registrable Securities in an Underwritten Offering in the manner reasonably requested by the Underwriters for such registrationUnderwritten Offering, unless such holder has agreed including through the use of customary road shows, investor conferences and other similar presentations in accordance with the Company or the managing underwriter Section 3.4(a)(vii). All Selling Expenses relating to limit its right under this Section 6.3.
(f) In any registration Registrable Securities registered pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to 3 shall be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder borne and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold paid by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders Holder’s Pro Rata on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationregistered on their behalf.
(hc) Notwithstanding anything Each Holder shall provide such information as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the preparation of any Registration Statement pursuant to Section 3, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 3 and in connection with the Company’s obligation to comply with federal and applicable state securities Laws. At least ten (10) business days prior to the contrary hereinfirst anticipated filing date of any such Registration Statement, the Company shall notify each Holder of the information the Company requires from such Holder and each such Holder shall provide such information to the Company at least four (4) business days prior to such first anticipated filing date of such Registration Statement. The Company shall have the right to exclude any Holder that does not be required comply with the Company’s request for information pursuant to include any this Section 3.4(c) from the requisite Registration Statement and to preclude such Holder from selling Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Actthereunder.
Appears in 2 contracts
Sources: Registration Rights and Stockholders’ Agreement (Graftech International LTD), Registration Rights and Stockholders’ Agreement (GrafTech Holdings Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof2.1 and, as applicable, 2.2, the Company willshall, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a the Registration Statement or amendments thereto, to effect such registration statement with respect to (including such Registrable audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the Commission, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.1); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject ;
(b) with respect to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected statement pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare 2.1, prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with until the intended methods earlier to occur of disposition by five (5) years after the seller date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive days or sellers thereof set forth an aggregate of 30 days in such five (5) years period) or such time as all of the securities which are the subject of such registration statement.statement cease to be Registrable Securities (such period, in each case, the “Registration Maintenance Period”);
(iiic) Furnish furnish to each holder of the sellers of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller; provided, however, if any such documents are available on the Commission’s website or another website, the Company shall not be required to provide copies of such documents;
(ivd) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each any seller thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (d) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities;
(f) notify the Sellers’ Representative and its counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(1) when the Registration Statement, subject, however, the prospectus or any prospectus supplement related thereto or post-effective amendment to the limitations set forth in clauses Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective;
(A), (B) and (C2) of Section 6.3(a)(iv) hereof.any request by the Commission for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(vi3) Immediately of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(g) notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver seller promptly prepare and furnish to such seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, except if such documents are available on the SEC or another website, such prospectus shall 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.;
(viih) Otherwise use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(i) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holdersHolders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiij) Use its best efforts in cooperation with the underwriters, if any, to list enter into such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders Sellers’ Representative shall reasonably request in writing (at the expense of the requesting or benefiting seller) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.; and
(bk) Each use its commercially reasonable best efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Registrable Securities are then listed. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing. The failure to provide such information shall toll any Default Fee until such information is provided. The Company will not file any registration statement pursuant to Section 2.1, or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference and proposed to be filed after the initial filing of the Registration Statement) to which the Sellers’ Representative shall reasonably object, provided that the Company may file such documents in a form required by law or upon the advice of its counsel. The Company represents and warrants to each holder of Registrable Securities willthat it has obtained all necessary waivers, consents and authorizations necessary to execute this Agreement and consummate the transactions contemplated hereby other than such waivers, consents and/or authorizations specifically contemplated by the Securities Purchase Agreement. The Fund agrees that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in subdivision (h) of this Section 6.3(a)(vi)2.3, the Fund will forthwith discontinue the Fund’s disposition of the Registrable Securities pursuant to the registration statement covering Registration Statement relating to such Registrable Securities until such holderFund’s receipt of the copies of the supplemented or amended prospectus contemplated by subdivision (h) of this Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees2.3 and, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in the Fund’s possession of the prospectus relating to such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable current at the Company to include time of receipt of such information in the registration statementnotice.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hepalife Technologies Inc), Registration Rights Agreement (Hepalife Technologies Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts by the provisions of this Agreement to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possibleSecurities:
(ia) Prepare andThe Company shall prepare and file with the SEC, in any event within sixty the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (60) calendar days after the end of the period within which requests for or on such other registration may be given form available to the Company (or within ninety (90) days after that permits the end greatest extent of such period incorporation by reference of materials filed by the Company under the Exchange Act or, if such period ends during the first month or the last month of no incorporation by reference is permitted, any form then available to the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and will use its best efforts to cause such registration statement to become effective as promptly as practicable (and, in any event, within sixty days) thereafter and to remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 90 days after such Registration Statement becomes effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected registrations pursuant to Section 6.2 at 2, or (2) 180 days after such Registration Statement becomes effective, in the case of registrations pursuant to Section 3, in every case as any time prior such period may be extended pursuant to the effective date of the registration statement relating theretosubsection (h) or Section 8.
(iib) Prepare The Company shall prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a such period of time required by subsection (a), as such period may be requested by the Requesting Holders not exceeding nine extended pursuant to subsection (9h) months and to or Section 8.
(c) The Company shall comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Registration Statement during the period during which any such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statementRegistration Statement is required to be effective.
(iiid) Furnish The Company shall furnish to each holder any Holder whose Registrable Securities are being registered hereunder and any underwriter of Registrable Securities covered by the registration statement Securities
(1) such number of copies (including manually executed and to each underwriter, if any, conformed copies) of such Registrable Securities Registration Statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (2) such number of copies of a the prospectus used in connection with such Registration Statement (including each preliminary prospectus, any summary prospectus and preliminary the final prospectus for delivery in conformity with the requirements of the Securities Actand including prospectus supplements), and (3) such number of copies of other documents documents, in each case as such Person Holder or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securitiesrequest.
(ive) Use The Company shall use its best efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities or "blue sky sky" laws of such jurisdictions states of the United States as each seller any Holder whose Registrable Securities are being registered or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably necessary requested by such Holder or advisable to enable such seller underwriter to consummate the offering and disposition of the Registrable Securities owned by such seller in such jurisdictions, except that ; but the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), wherein it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(vf) Use The Company shall use its best efforts to cause such the Registrable Securities covered by such registration statement Registration Statement to be registered or qualified with with, or approved by by, such other United States public, governmental agencies or authorities (includingregulatory authorities, without limitationif any, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate required in connection with the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vig) Immediately notify each seller of The Company shall list the Registrable Securities covered by such registration statementRegistration Statement on any securities exchange (or if applicable, at the Nasdaq National Market System) on which any time securities of the Company are then listed.
(h) The Company shall notify the Holders' Agent as promptly as practicable and, if requested by Holders' Agent, confirm such notification in writing, (1) when a prospectus relating or any prospectus supplement has been filed with the SEC, and when a Registration Statement or any post-effective amendment thereto is required has been filed with and declared effective by the SEC, (2) of the issuance by the SEC of any stop order or the coming to be delivered under its knowledge of the Securities Act within initiation of any proceedings for that purpose, (3) of the appropriate period mentioned in Section 6.3(a)(ii), if receipt by the Company becomes aware of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (4) of the occurrence of any event which requires the making of any changes to a Registration Statement or related prospectus so that the prospectus included in such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existing; use its best efforts to under which they were made, not misleading (and the Company shall promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at each Holder (through the request of any such seller, deliver Holders' Agent) a reasonable number of copies of an a supplemented or amended or supplemental prospectus as may be necessary so such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 therein, in the light of the circumstances then existing.
under which they are made, not misleading), and (vii5) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement 's determination that the filing of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, a post-effective amendment to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges a Registration Statement shall be acceptable to necessary or appropriate. Upon the Company.
(ix) In receipt by the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt Holders' Agent of any notice from the Company of the happening occurrence of any event of the kind described in Section 6.3(a)(viclause (4), the Holders shall forthwith discontinue any offer and disposition of the Registrable Securities pursuant to the registration statement Registration Statement covering such Registrable Securities until such holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreeswhich is no longer defective and, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such information as Registrable Securities which are then in the Holders' possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the Registration Statement is required by subsection (a) to be effective shall be extended by the number of days from and including the date such notice is provided, to and including the date when Holders shall have received copies of the corrected prospectus.
(i) The Company shall enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or facilitate the disposition of such Registrable Securities, and in that regard, deliver to the Holders such documents and certificates as may be reasonably request from such holder concerning such holder and its intended method requested by the Holders of distribution a majority of the Registrable Securities being sold or, as applicable, the managing underwriters, to enable evidence the Company Company's compliance with this Agreement, including, in the case of any underwritten offering, using commercially reasonable efforts to include such information cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar in scope to that customarily delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement.
(g) It is understood that , or if such letter can not be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company's financial statements included or incorporated by reference in any Underwritten Offering in addition the registration statement at the highest level permitted to any shares of stock (be given by such accountants under the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) then applicable standards of the initial shares (or American Institute of Certified Public Accountants with respect to such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationRegistration Statement.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pegasus Communications Corp), Registration Rights Agreement (Pegasus Communications Corp)
Registration Procedures. (a) If and whenever the Company is required to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 5.1, 5.2 and 5.3 the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the SEC and thereafter use its reasonable best efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely review and reasonable review comment of such counsel; and provided, further, counsel (it being understood that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior counsel to the effective date of the registration statement relating thereto.Selling Holders will conduct its review and provide any comments promptly);
(ii) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (x) in the case of a Demand Registration pursuant to Section 5.1, the expiration of 60 days after such registration statement becomes effective, (y) in the case of a Piggyback Registration pursuant to Section 5.2, the expiration of 60 days after such registration statement becomes effective or (z) in the case of a Shelf Registration pursuant to Section 5.3, the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and each Free Writing Prospectus utilized in connection therewith and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Selling Holder;
(iv) Use its use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required to (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) file a general consent to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the NASDAQ Stock Market;
(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) obtain for each Selling Holder and any underwriter:
(A) an opinion of counsel for the Company, subjectcovering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and/or underwriters, and
(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) any request by the SEC for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) the issuance by the SEC or any of Section 6.3(a)(iv) hereof.any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(viD) Immediately when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any Proceeding for such purpose;
(x) notify each seller of Registrable Securities covered by such registration statementSelling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver Selling Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.misleading;
(viixi) Otherwise use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holdersSelling Holders, in each case as soon promptly as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiixiii) Use use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with any Selling Holder and any underwriters and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in cooperation such denominations and registered in such names as the managing underwriter or such Selling Holders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates, if necessary or appropriate;
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter or the Majority Stockholders, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities and file or cause the filing of any registration statement under the Securities Act;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the underwritersFINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;
(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and all reporting requirements under the rules and regulations of the Exchange Act;
(xxii) cause any officer of the Company to participate fully in the sale process in a manner customary for persons in like positions and consistent with his or her other duties with the Company, including the preparation of the registration statement and the preparation and presentation of any road shows and other investor meetings; and
(xxiii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxii) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they the Company may from time to time reasonably designaterequest to complete or amend the information required by such registration statement. Without limiting any of the foregoing, which securities exchanges shall be acceptable to the Company.
(ix) In in the event that the offering of Registrable Securities is to be made by or through an Underwritten Offeringunderwriter, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in customary form) and take underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable SecuritiesSecurities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(b) Each holder of Registrable Securities will, Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi5.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.the
Appears in 2 contracts
Sources: Investor Rights Agreement (Chewy, Inc.), Investor Rights Agreement (Chewy, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities 1933 Act as provided in Section 6.1 or 6.2 hereof2.2 and, as applicable, 2.3, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a SEC the Registration Statement, or amendments thereto, to effect such registration statement with respect to (including such Registrable Securities audited financial REGISTRATION RIGHTS AGREEMENT BETWEEN ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. AND CERTAIN INVESTORS PAGE 5 OF 19 statements as may be required by the 1933 Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the SEC, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.2); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare with respect to any registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities Registrable Securities covered by such registration statement until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for not more than 10 consecutive Trading Days or an aggregate of 20 Trading Days during each year (each a "BLACK-OUT PERIOD")) or such period in accordance with time as all of the intended methods securities which are the ---------------- subject of disposition by the seller or sellers thereof set forth in such registration statement.statement cease to be Registrable Securities (such period, in each case, the "REGISTRATION MAINTENANCE PERIOD"); ---------------------------------
(iii) Furnish furnish to each holder of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the 1933 Act, in conformity with the requirements of the Securities 1933 Act, and such other documents documents, as such Person holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities.;
(iv) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws as any holder of such jurisdictions as each seller Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller holder of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsholder of Registrable Securities, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by REGISTRATION RIGHTS AGREEMENT BETWEEN ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. AND CERTAIN INVESTORS PAGE 6 OF 19 such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each holder of Registrable Securities a signed counterpart, subjectaddressed to such holder of Registrable Securities, howeverand the underwriters, if any, of an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder of Registrable Securities) including that the prospectus and any prospectus supplement forming a part of the Registration Statement does not contain an untrue statement of a material fact or omits a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(vii) notify the Investor and its counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(A) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the limitations set forth in clauses (A)Registration Statement has been filed, and, with respect to the Registration Statement or any post- effective amendment thereto, when the same has become effective;
(B) and of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(C) of Section 6.3(a)(iv) hereof.the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(viD) Immediately of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(viii) notify each seller holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within 1933 Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amended or supplemental amendment of such REGISTRATION RIGHTS AGREEMENT BETWEEN ENTECH ENVIRONMENTAL TECHNOLOGIES, INC. AND CERTAIN INVESTORS PAGE 7 OF 19 prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.;
(viiix) Otherwise use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(x) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation at least twelve months, but not more than eighteen months, beginning with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) first full calendar month after the effective date of such registration.registration statement, which earnings statement shall satisfy the provisions of Section 1 l(a) of the 1933 Act and Rule 158 thereunder;
(dxi) If a enter into such agreements and take such other actions as the Investors shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to expedite or facilitate the disposition of such Registrable Securities; and
(xii) use its commercially reasonable best efforts to list all Registrable Securities covered by such registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect statement on any public sale or distribution of securities exchange on which any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration are then listed. The Company may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, require each holder of Registrable Securities requesting as to be included in such which any registration shall is being effected to furnish to the Company all such information regarding such holder of Registrable Securities and the distribution of such securities as the Company may from time to time reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statementwriting.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Entech Environmental Technologies Inc), Registration Rights Agreement (Entech Environmental Technologies Inc)
Registration Procedures. (a) If If, and whenever in each case when, the Company is required to use its best efforts to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in this Section 6.1 or 6.2 hereof3, the Company will, as expeditiously as possibleshall promptly:
(ia) Prepare prepare and, in any event within sixty forty-five days (60thirty days in the case of a Form S-3 registration) calendar days after the end of the period under Section 3.2.1(a) within which requests a piggyback request for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement Registration Statement with respect to such Registrable Securities and use use, in the event the Company is not a WKSI, its best commercially reasonable efforts to cause such registration statement Registration Statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date within ninety days of the registration statement relating thereto.initial filing;
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective (i) in the case of a shelf Registration Statement, until the earlier of (A) the date on which all remaining Registrable Securities may be sold under Rule 144 under the Securities Act without regard to volume limitations or (B) two years after the effective date of such Registration Statement, or (ii) in all other cases for a period as may be requested not in excess of 270 days (in each case, or such shorter period which will terminate when all Registrable Securities covered by the Requesting Holders not exceeding nine (9such Registration Statement have been sold) months and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such registration statement Registration Statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.Registration Statement; provided that before filing a Registration Statement or prospectus, or any amendments or supplements thereto in accordance with Sections 3.1 or 3.2, the Company will furnish to counsel selected pursuant to Section 3.3.3 hereof copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, seller of such Registrable Securities such number of copies of a such Registration Statement and of each amendment and supplement thereto (in each case including all exhibits filed therewith), such number of copies of the prospectus included in such Registration Statement (including each preliminary prospectus and preliminary prospectus for delivery summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities by such seller;
(ivd) Use use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of in such jurisdictions as each seller of Registrable Securities shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, where (but for the requirements of this Section 6.3(a)(ivclause (d), ) it is would not then be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause notify each seller of any such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statementRegistration Statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes Company’s becoming aware that the prospectus included in such registration statementRegistration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver prepare and furnish to such seller a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.;
(viif) Otherwise otherwise use its best efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holders, in each case as soon as practicable, reasonably practicable (but not later more than ninety (9018 months) calendar days after the close effective date of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company)Registration Statement, an earnings earning statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act.;
(viiig) Use (i) if such Registrable Securities are Common Stock (including Common Stock issuable upon conversion, exchange or exercise of another security), use its best efforts to list such Registrable Securities on any securities exchange or authorize for quotation on each other market on which the Common Stock is then listed or authorized for quotation if such Registrable Securities are not already so listed or authorized for quotation; and (ii) use its best efforts to provide a transfer agent and registrar for such Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement;
(h) enter into such customary agreements (including an underwriting agreement in cooperation with customary form), which shall include indemnification provisions in favor of underwriters and other Persons (in addition to the provisions of Section 3.4 hereof) covering the entirety of the Registration Statement, excluding any information supplied to the underwriters by the Holders selling Registrable Securities in such offering, and take such other actions as the Principal Participating Holders or the underwriters, if any, reasonably request in order to list expedite or facilitate the disposition of such Registrable Securities;
(i) obtain a “comfort” letter or letters from the Company’s independent public accountants in customary form and covering matters of the type customarily covered by “comfort” letters, as the Principal Participating Holders shall reasonably request;
(j) make available for inspection by any seller of such Registrable Securities on covered by such Registration Statement, by any managing underwriter or underwriters participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by any such seller or any such managing underwriter(s), all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement (subject to each securities exchange as they may party referred to in this clause (j) entering into customary confidentiality agreements in a form reasonably designate, which securities exchanges shall be acceptable to the Company.);
(ixk) In notify counsel (selected pursuant to Section 3.3.3 hereof) for the event Holders of Registrable Securities included in such Registration Statement and the managing underwriter or agent, immediately, and confirm the notice in writing (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the prospectus or any amendment to the prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Registration Statement for offering is an Underwritten Offeringor sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(l) use its best efforts to prevent the issuance of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable;
(m) if requested by the managing underwriter or agent or any Holder of Registrable Securities covered by the Registration Statement, incorporate in a “cold comfort” letter prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such Holder reasonably requests to be included therein, including the number of Registrable Securities being sold by such Holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent, and any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
(n) cooperate with the Holders of Registrable Securities covered by the Registration Statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or agent, if any, or such Holders may request;
(o) obtain for delivery to the Holders of Registrable Securities being registered and to the underwriter or agent an opinion or opinions from the independent public accountants counsel for the Company in customary form and covering in form, substance and scope reasonably satisfactory to such matters Holders, underwriters or agents and their counsel;
(p) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering disposition of such Registrable Securities.Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(xq) Execute use its best efforts to make available the executive officers of the Company to participate with the Holders of Registrable Securities and deliver all instruments and documents (including any underwriters in an Underwritten Offering an underwriting agreement any “road show” presentations or investor telephone conference calls that may be reasonably requested by the Holders in customary form) and take such other actions and obtain such certificates and opinions as connection with distribution of the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights and Coordination Agreement, Registration Rights and Coordination Agreement (West Corp)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof2.2 and, as applicable, 2.3, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a SEC the registration statement with respect statement, or amendments thereto, to effect such Registrable registration (including such audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the SEC, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.2); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare with respect to any registration statement pursuant to Section 2.2 or Section 2.3, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during until such period in accordance with time as all of the intended methods securities which are the subject of disposition by the seller or sellers thereof set forth in such registration statement.statement cease to be Registrable Securities (such period, in each case, the “Registration Maintenance Period”);
(iii) Furnish furnish to each holder Holder of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Holder;
(iv) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws of such jurisdictions as each seller any U.S. Holder shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsHolder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers U.S. Holder thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each Holder a signed counterpart, subjectaddressed to such Holder, howeverand the underwriters, if any, of an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such Holder) including that the prospectus and any prospectus supplement forming a part of the registration statement does not contain an untrue statement of a material fact or omit a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and
(vii) notify the Holder and its counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(A) when the registration statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the limitations set forth in clauses (A)registration statement has been filed, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(B) and of any request by the SEC for amendments or supplements to the registration statement or the prospectus or for additional information;
(C) of Section 6.3(a)(iv) hereof.the issuance by the SEC of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(viD) Immediately of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(viii) notify each seller Holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver Holder promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.;
(viiix) Otherwise use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest possible moment;
(x) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiixi) Use its best efforts in cooperation with the underwriters, if any, to list enter into such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.; and
(bxii) Each holder use its commercially reasonable best efforts to list or otherwise qualify for trading all Registrable Securities covered by such registration statement on any securities exchange, trading market, quotation system and any other trading venue on which any of the Company’s securities of the same class as the Registrable Securities are then listed or qualified for trading or quotation. The Company may require each Holder of Registrable Securities will, upon receipt of as to which any notice from registration is being effected to furnish the Company of such information regarding such Holder and the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part distribution of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may from time to time reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statementwriting.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Intersearch Group Inc), Investment Agreement (Intersearch Group Inc)
Registration Procedures. (a) If and whenever Whenever the parties hereto have requested that any Registrable Securities be registered in a Piggyback Registration pursuant to Section 5.1 or a Demand Registration has been requested pursuant to Section 5.2, the Company is required to will use its best reasonable efforts to effect or cause the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 6.1 or 6.2 hereofintended method of disposition thereof, and pursuant thereto the Company will, will as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities and thereafter use its best reasonable efforts to cause such registration statement to become and remain effective; effective (provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.);
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of either (i) not less than six months (subject to extension pursuant to Section 5.7(b)) or, if such registration statement relates to an underwritten offering, such longer period as may in the opinion of counsel for the underwriters a prospectus is required by law to be requested delivered in connection with sales of Registrable Securities by an underwriter or dealer or (ii) such shorter period as will terminate when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of disposition by the Requesting Holders seller or sellers thereof set forth in such registration statement (but in any event not exceeding nine (9) months before the expiration of any longer period required under the Securities Act), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.;
(iiic) Furnish furnish to each holder seller of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of a such registration statement, each amendment and supplement thereto, the prospectus and included in such registration statement (including each preliminary prospectus for delivery in conformity with the requirements of the Securities Act, prospectus) and such other documents as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(ivd) Use use its best reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each any seller shall reasonably request, requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictions, except (provided that the Company shall will not for any such purpose be required to (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(iv)subparagraph, it is not then so qualified, or (Bii) to subject itself to taxation in any such jurisdiction, jurisdiction or (Ciii) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction);
(ve) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the notify each seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)discovery of the happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; under which they were made, and, at the request of any such seller, deliver the Company will prepare and furnish to such seller a reasonable number of copies of an amended a supplement or supplemental amendment to such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall will not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.under which they were made;
(viif) Otherwise cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(j) otherwise use its best reasonable efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months beginning with the first day of the Company Company's first full calendar quarter after the effective date of the registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiik) Use in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in such registration statement for sale in any jurisdiction, the Company will use its best reasonable efforts in cooperation with promptly to obtain the underwriterswithdrawal of such order;
(l) obtain a cold comfort letter, dated the effective date of such registration statement (and, if anysuch registration includes an underwritten public offering, to list such Registrable Securities on each securities exchange as they may reasonably designatedated the date of the closing under the underwriting agreement), which securities exchanges shall be acceptable to signed by the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the 's independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such cold comfort letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering holders of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition a majority of the Registrable Securities pursuant to the registration statement covering being sold reasonably request (provided that such Registrable Securities until such holder’s receipt constitute at least 10% of the copies securities covered by such registration statement); and
(m) provide a legal opinion of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten OfferingCompany's outside counsel, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after dated the effective date of such registration.
registration statement (d) If a and, if such registration pursuant includes an underwritten public offering, dated the date of the closing under the underwriting agreement), with respect to Section 6.1 or 6.2 involves an Underwritten Offeringthe registration statement, each amendment and supplement thereto, the Company agrees, if so required prospectus included herein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any legal opinions of such equity or debt securities, as the case nature. The Company may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder require each seller of Registrable Securities requesting as to be included in which any registration is being effected to furnish the Company such registration may elect, in writing, prior to information regarding such seller and the effective date distribution of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may from time to time reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statementwriting.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Shareholders Agreement (Tanner Chemicals Inc), Shareholder Agreement (Sovereign Specialty Chemicals Inc)
Registration Procedures. (a) If and whenever In the case of each registration effected by the Company is required pursuant to Section 1, the Company will keep each Holder advised in writing as to the initiation of each registration and as to the completion thereof. At its expense, the Company will use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possibleto:
(ia) Prepare and, in any event within sixty Keep such registration effective for a period of one hundred fifty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90150) days after or until the end of such period if such period ends during Holder or Holders have completed the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, distribution described in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto., whichever first occurs; provided, however, that (i) such one hundred fifty (150) day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed basis, subject to compliance with applicable Commission rules, such one hundred fifty (150) day period shall be extended for up to seventy-five (75) days, if necessary, to keep the registration statement effective to enable all such Registrable Securities to be sold;
(iib) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.;
(iiic) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number numbers of copies of prospectuses, including a prospectus and preliminary prospectus for delivery in conformity with or an amendment of or supplement to the requirements of prospectus, as required by the Securities Act, and such other documents documents, as such Person a Holder from time to time may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(ivd) Use its best efforts to register or qualify Cause all such Registrable Securities registered pursuant hereunder to be listed on a national securities exchange and each securities exchange on which similar securities issued by the Company are then listed;
(e) Provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;
(f) In connection with any underwritten offering pursuant to a registration statement filed pursuant to Section 1.2 hereof, the Company will enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of Common Stock, provided such underwriting agreement contains reasonable and customary provisions, and provided further, that each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
(g) Register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate requested by the disposition of the Registrable Securities owned by such seller in such jurisdictionsHolders, except provided that the Company shall not for any such purpose be required (A) in connection therewith or as a condition thereto to qualify to do business as or to file a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) general consent to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such states or jurisdictions unless the Company is already subject to service in such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) and except as may be necessary to enable required by the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.Securities Act;
(vih) Immediately notify each seller Promptly make available for inspection by the Holders of Registrable Securities covered by such registration statement, any managing underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith;
(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) After such registration statement becomes effective, notify each Holder of Registrable Securities covered by such registration statement of any request by the Commission that the Company amend or supplement such registration statement or prospectus; and
(k) Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act within of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that happening of any event as a result of which the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Varonis Systems Inc), Investors’ Rights Agreement (Varonis Systems Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities 1933 Act as provided in Section 6.1 or 6.2 hereof2.2 and, as applicable, 2.3, the Company willshall, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a SEC the Registration Statement, or amendments thereto, to effect such registration statement with respect to (including such Registrable Securities audited financial statements as may be required by the 1933 Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided thatbe declared effective by the SEC, as soon as practicable, but in any event no later than the case of Required Effectiveness Date (with respect to a registration provided for in pursuant to Section 6.1 or 6.2 hereof2.2); provided, however, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare with respect to any Initial or Subsequent Registration Statement, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities Registrable Securities covered by such registration statement during until the earlier to occur of thirty six (36) months after the date of this Agreement (subject to the right of the Company to suspend the effectiveness thereof for an Excusable Reason (each a “Black-Out Period”)) or such period in accordance with time as all of the intended methods securities which are the subject of disposition by the seller or sellers thereof set forth in such registration statement.statement cease to be Registrable Securities (such period, in each case, the “Registration Maintenance Period”). The Company shall notify the Investors within twenty four (24) hours prior to any Black-Out Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the such registration statement such number of conformed copies of such registration statement and to of each underwritersuch amendment and supplement thereto (in each case including all exhibits), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the 1933 Act, in conformity with the requirements of the Securities 1933 Act, and such other documents documents, as such Person holder of Registrable Securities and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such holder of Registrable Securities.;
(iv) Use use its commercially reasonable best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. holder of such jurisdictions as each seller Registrable Securities thereof shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller holder of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsholder of Registrable Securities, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its commercially reasonable best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers U.S. holder of Registrable Securities thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately furnish to each holder of Registrable Securities who requests, a signed counterpart, addressed to such holder of Registrable Securities, and the underwriters, if any, of an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), such opinion to be in the form filed as Exhibit 5 to the registration statement, and
(vii) notify the Investors and their counsel promptly and confirm such advice in writing promptly after the Company has knowledge thereof:
(a) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective;
(b) of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus or for additional information;
(c) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and
(d) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(viii) notify each seller holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within 1933 Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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.;
(viiix) Otherwise use its commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(x) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.1933 Act and Rule 158 thereunder;
(viiixi) Use its best efforts in cooperation with the underwriters, if any, to list enter into such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) agreements and take such other actions and obtain such certificates and opinions as the Requesting Holders Investors shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities; and
(xii) use its commercially reasonable best efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Registrable Securities are then listed.
(xiii) The Company may require each holder of Registrable Securities as to which any registration is being effected to furnish the Company such information regarding such holder of Registrable Securities and the distribution of such securities as the Company may from time to time reasonably request in writing. In this connection, the Investors shall:
(a) furnish the information as to any shares of Common Stock or other securities of the Company owned by the holder, the holder’s proposed plan of distribution, any relationship between the holder and the Company and any other information which the Company reasonably requests in connection with the preparation of the registration statement and update such information immediately upon the occurrence of any events or condition which make the information concerning the Seller inaccurate in any material respect;
(b) Each holder of Registrable Securities will, upon receipt of not sell any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of except in the copies of manner set forth in the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).Registration Statement;
(c) If a registration comply with the prospectus delivery requirements and the provisions of Regulation M of the SEC pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not the 1933 Act to the extent that such regulation is applicable to the holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.;
(d) If a registration pursuant to Section 6.1 not sell or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale otherwise transfer or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include distribute any Registrable Securities of if the holder possesses any holder in material nonpublic information concerning the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities ActCompany.
Appears in 2 contracts
Sources: Registration Rights Agreement (Achievers Magazine Inc), Registration Rights Agreement (Capital Solutions I, Inc.)
Registration Procedures. In connection with the registration obligations of the Company pursuant to the terms and conditions of this Agreement, the Company shall:
(a) If and whenever prior to filing a Registration Statement or Prospectus or any amendments or supplements thereto, including documents incorporated by reference after the Company is required to use its best efforts to effect or cause initial filing of the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofRegistration Statement, the Company willwill furnish to the Holder covered by such Registration Statement (the "Selling Holder"), as expeditiously as possible:
Holders' Counsel and the underwriters, if any, draft copies of all such documents proposed to be filed at least three (i3) Prepare andBusiness Days prior thereto, in which documents will be subject to the review of such Holder’s Counsel and the underwriters, if any, and the Company will not, unless required by law, file any event within sixty Registration Statement or amendment thereto or any Prospectus or any supplement thereto (60including such documents incorporated by reference) calendar days after to which the end of Selling Holder (the period within which requests for registration may be "Objecting Party") shall object, pursuant to notice given to the Company (or within ninety (90) days after prior to the end filing of such period if amendment or supplement (the "Objection Notice"). The Objection Notice shall set forth the objections and the specific areas in the draft documents where such period ends during the first month or the last month objections arise. The Company shall have five (5) Business Days after receipt of the Company’s fiscal year)Objection Notice to correct such deficiencies to the satisfaction of the Objecting Party, and will notify the Selling Holder of any stop order issued or threatened by the Commission in connection therewith and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(b) as promptly as practicable prepare and file with the Commission a registration statement such amendments and post-effective amendments to the Registration Statement as may be necessary to keep such Registration Statement effective for the period required pursuant to Section 2; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act applicable to it with respect to such the disposition of all Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;
(c) as promptly as practicable furnish to any Selling Holder and the underwriters, if any, without charge, such number or conformed copies of such Registration Statement and any post-effective amendment thereto and such number of copies of the Prospectus (including each preliminary Prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein, as such Selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities being sold by such Selling Holder (it being understood that the Company consents to the use its best efforts to cause such registration statement to become of the Prospectus and remain effective; provided thatany amendment or supplement thereto by each Selling Holder and the underwriters, if any, in connection with the case offering and sale of a registration provided for in Section 6.1 the Registrable Securities covered by the Prospectus or 6.2 hereofany amendment or supplement thereto); provided, that before filing a registration statement Registration Statement or prospectus Prospectus relating to the Registrable Securities or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders Holders' Counsel copies of all such documents proposed to be filedfiled at least three (3) Business Days prior to the filing thereof, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time ;
(d) on or prior to the effective date of on which the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriterRegistration Statement is declared effective, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or "blue sky sky" laws of such jurisdictions as each seller shall any Selling Holder, Holders' Counsel or underwriter reasonably request, requests and do any and all other acts and things which may be necessary or advisable to enable such Selling Holder to consummate the disposition in such jurisdictions of such Registrable Securities owned by such Selling Holder; keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective; and do any and all other acts or things reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned covered by such seller in such jurisdictions, except the applicable Registration Statement; provided that the Company shall not for any such purpose be required to (Ai) to qualify to do business as a foreign corporation or as a broker-dealer in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, qualified or (Bii) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process or to taxation in any such jurisdiction where it is not then so subject.;
(ve) Use its best efforts to cause such the Registrable Securities covered by such registration statement Registration Statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof Selling Holders to consummate the disposition of such Registrable Securities;
(f) as promptly as practicable notify the Holder, subject, however, to the limitations set forth ▇▇▇▇▇▇’s Counsel and any underwriter and (if requested by any such Person) confirm such notice in clauses (A)writing, (Bi) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information to be included in any Registration Statement or Prospectus or otherwise, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose and (Cv) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller the happening of Registrable Securities covered by such registration statement, at any time when event which makes any statement made in a prospectus relating thereto is required Registration Statement or related Prospectus or any document incorporated or deemed to be delivered under incorporated by reference therein untrue or which requires the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included making of any changes in such registration statementRegistration Statement, as then in effect, includes an Prospectus or documents so that they will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existingmisleading; use its best efforts to and, as promptly as practicable thereafter, prepare and file an appropriate with the Commission and furnish a supplement or amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary Prospectus so that, as thereafter delivered deliverable to the purchasers of such Registrable Securities, such prospectus shall Prospectus will not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existing.under which they were made, not misleading;
(viig) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), Holders an earnings statement of the Company which will satisfy satisfying the provisions of Section 11(a) of the Securities Act.Act no later than thirty (30) days after the end of the 12-month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement;
(viiih) Use use its best reasonable efforts in cooperation to prevent the issuance of any order suspending the effectiveness of a Registration Statement, and, if one is issued, to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment;
(i) as promptly as practicable after filing with the Commission of any document which is incorporated by reference into a Registration Statement, deliver a copy of such document to Holders' Counsel;
(j) cooperate with the Selling Holder and the managing underwriter or underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, facilitate the timely preparation and delivery of certificates (which securities exchanges shall not bear any restrictive legends and shall be acceptable in a form eligible for deposit with the Depository Trust Company) representing securities sold under such Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such Selling Holders may request and make available prior to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering effectiveness of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering Registration Statement a supply of such Registrable Securities.
(b) certificates; Each holder of Registrable Securities willSelling Holder, upon receipt of any notice from the Company of the happening of any event of the kind described in subsection (f) of this Section 6.3(a)(vi)3, shall forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s Selling Holder's receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by subsection (f) of this Section 6.3(a)(vi).
2 or until it is advised in writing (cthe "Advice") If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offeringby the Company that the use of the Prospectus may be resumed, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, and has received copies of any Registrable Securities additional or of any security convertible into supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such Selling Holder will, or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as will request the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesunderwriters, if so required by the managing underwriterany, not to effect any public sale or distribution of any of its equity or debt securitiesto, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such information as Selling Holder's possession, of the Company may reasonably request from Prospectus covering such holder concerning such holder and its intended method of distribution of Registrable Securities to enable current at the Company to include time of receipt of such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotmentsnotice. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in In the event that the Company shall obtain an opinion give any such notice, the time periods for which a Registration Statement is required to be kept effective pursuant to Section 2 hereof shall be extended by the number of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision days during the period from and including the date of the Securities Actgiving of such notice to and including the date when each Selling Holder shall have received (i) the copies of the supplemented or amended Prospectus contemplated by Section 2(f) or (ii) the Advice.
Appears in 2 contracts
Sources: Grant of Immediate Registration Rights (Signalife, Inc.), Grant of Immediate Registration Rights (Signalife, Inc.)
Registration Procedures. If and whenever (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 Sections 2 and 3 or 6.2 hereof(b) there is a Requesting Holder in connection with any other proposed registration by the Company under the Securities Act, the Company will, will as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a the requisite registration statement with respect (including such audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) to effect such Registrable Securities registration and use its best efforts to cause such registration statement to become and remain effective; , provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities whose Registrable Securities are to be included in such registration copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; , and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of (A) such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement and (B) the expiration of 120 days after such registration statement becomes effective, except with respect to any such registration statement filed pursuant to Rule 415 (or any successor Rule) under the Securities Act, in which case such period shall be 2 years;
(iii) Furnish furnish to each holder seller of Registrable Securities covered by the such registration statement and to each underwriter, if any, Requesting Holder such number of conformed copies of such Registrable Securities registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(iv) Use use its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller thereof and each Requesting Holder shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately notify furnish to each seller of Registrable Securities covered by such registration statementand each Requesting Holder a signed counterpart, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement addressed to such prospectus seller (and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.of
Appears in 2 contracts
Sources: Note and Warrant Purchase Agreement (General Housing Inc), Securities Purchase Agreement (General Housing Inc)
Registration Procedures. It shall be a condition precedent to the obligations of the Company and any underwriter or underwriters to take any action pursuant to this Article II that each Holder requesting inclusion in any Piggyback Underwritten Offering or Demand Registration (a “Registration”) shall furnish to the Company such information regarding such Holder, the Registrable Shares held by it, the intended method of disposition of such Registrable Shares, and such agreements regarding indemnification, disposition of such securities and other matters referred to in this Article II as the Company shall reasonably request and as shall be reasonably required in connection with the action to be taken by the Company; provided that (x) no Holder shall be required to make any representations or warranties to, or agreements with, the Company other than representations and warranties regarding such Holder and such Holder’s ownership of and title to the Registrable Shares to be sold in such offering and its intended method of distribution and (y) any liability of any such Holder under any underwriting agreement relating to such Registration shall be limited to liability arising from breach of its representations and warranties therein and shall be limited to an amount equal to the net amount received by such Holder from the sale of Registrable Shares pursuant to such Registration. With respect to any Registration which includes Registrable Shares held by a Holder, the Company shall, subject to Sections 2.01 through 2.04:
(a) If and whenever in accordance with the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will1933 Act, as expeditiously soon as possible:
(i) Prepare andreasonably practicable, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission within (x) thirty (30) days, in the case of a Form S-1, or (y) within fifteen (15) days, in the case of a Form S-3, of such request for registration by a Holder of Registrable Shares, a registration statement with respect to such Registrable Securities on the appropriate form prescribed by the Commission and use its reasonable best efforts to cause such registration statement to become and remain effectiveeffective as soon as practicable thereafter; provided thatthat the Company shall not be obligated to maintain such Registration effective for a period longer than the Effectiveness Period; provided, in the case of a registration provided for in Section 6.1 or 6.2 hereoffurther, that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected Holders covered by such registration statement and the Requesting Holders underwriter or underwriters, if any, copies of or drafts of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counselHolders and any underwriters named therein. Each Holder will have the opportunity to object to any information pertaining to such Holder that is contained therein and the Company will make the corrections reasonably requested by such Holder with respect to such information prior to filing any registration statement or amendment thereto or any prospectus or any supplement thereto; and provided, furtherhowever, that the Company may discontinue will not include any information pertaining to the Holders in any registration statement or amendment thereto or any prospectus or any supplement thereto to which Holders of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date a majority of the Registrable Shares covered by such registration statement relating thereto.shall reasonably object;
(iib) Prepare in accordance with the 1933 Act, prepare and file with the Commission such amendments (including and post-effective amendments) and supplements amendments to such registration statement and the prospectus used in connection therewith any documents required to be incorporated by reference therein as may be necessary to keep such the registration statement effective for a period of not less than the Effectiveness Period (but not prior to the expiration of the time period referred to in Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the prospectus to be supplemented by any required prospectus supplement, and as may so supplemented to be requested by filed pursuant to Rule 424 under the Requesting Holders not exceeding nine (9) months 1933 Act; and to comply with the provisions of the Securities 1933 Act applicable to it with respect to the disposition of all securities Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) covered by such registration statement during such the applicable period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or supplement to the prospectus;
(iiic) Furnish furnish to such Holder, without charge, such number of conformed copies of the registration statement and any post-effective amendment thereto, as such Holder may reasonably request, and such number of copies of the prospectus (including each holder preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein as the Holder or underwriter or underwriters, if any, may request in order to facilitate the disposition of Registrable Securities the securities being sold by such Holder (it being understood that the Company consents in writing to the use of the prospectus and any amendment or supplement thereto by the Holder covered by the registration statement and to each underwriterthe underwriter or underwriters, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity connection with the requirements offering and sale of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate securities covered by the public sale prospectus or other disposition of the Registrable Securities.any amendments or supplements thereto);
(ivd) Use its best efforts to register or qualify promptly notify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statementHolder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii)1933 Act, if when the Company becomes aware that of the happening of any event as a result of which the prospectus included in such registration statement, statement (as then in effect, includes an ) contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the prospectus or any preliminary prospectus, in light of the circumstances then existing; use its best efforts to under which they were made) not misleading and, as promptly as practicable thereafter, prepare and file an appropriate with the Commission and furnish a supplement or amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers investors of such Registrable Securitiessecurities, such prospectus shall will not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existing.under which they were made, not misleading (and the Effectiveness Period of the registration statement may be extended by the number of days from and including the date such notice is given to the date such supplement or amendment to such prospectus has been delivered under this Section 2.05(d));
(viie) Otherwise in the case of an underwritten offering, enter into and perform such customary agreements (including underwriting agreements in customary form) and make members of senior management of the Company available on a basis reasonably requested by the underwriters to participate in “road show”, analyst and investor presentations and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares)) and cause to be delivered to the underwriters opinions of counsel to the Company (and, if such registration statement includes an underwritten public offering, dated the date of the closing under the underwritten agreement), with respect to the registration statement, each supplement and amendment thereto, the prospectus included therein (including the preliminary prospectus) and such other documents related thereto in customary form, covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriters may reasonably request and addressed to the underwriters;
(f) in the case of an underwritten offering, make available, for inspection by any seller of Registrable Shares, any underwriter participating in any disposition pursuant to a registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents of the Company, and cause the Company’s officers, directors, managers, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent that are necessary to be reviewed by such person in connection with the preparation of such registration statement;
(g) in the case of an underwritten offering, if requested, cause to be delivered, at the time of the pricing of an underwritten offering and at the time of delivery of any Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) sold pursuant thereto, “comfort” letters from the Company’s independent certified public accountants addressed to each underwriter, if any, in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with primary or secondary underwritten public offerings, as the case may be;
(h) provide a transfer agent and registrar for all such Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) and provide a CUSIP number for all such Registrable Shares or Common Shares, in each case, not later than the effective date of the registration statement;
(i) use its reasonable best efforts to comply with cause all applicable rules and regulations securities included in such registration statement to be listed, by the date of the Commission and first sale of securities pursuant to such registration statement, on any national securities exchange, quotation system or other market on which the Common Shares are then listed or proposed to be listed by the Company;
(j) make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), holders an earnings statement of the Company statement, which will satisfy need not be audited, satisfying the provisions of Section 11(a) of the Securities Act.1933 Act and Rule 158 thereunder as soon as reasonably practicable after the end of the twelve (12) month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the registration statement, which statement shall cover said twelve (12) month period;
(viiik) Use its after the filing of a registration statement, (i) promptly notify each Holder covered by such registration statement of any stop order issued or, to the Company’s knowledge, threatened by the Commission and of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) for sale under the applicable securities or blue sky laws of any jurisdiction and (ii) take all reasonable actions to obtain the withdrawal of any order suspending the effectiveness of the registration statement or the qualification of any Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) at the earliest possible moment;
(l) subject to the time limitations specified in paragraph (b) above, if requested by the managing underwriter or underwriters or such Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters or the Holder reasonably requests to be included therein, including, without limitation, with respect to the number of shares being sold by the Holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any term of the underwritten offering of the securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(m) as promptly as practicable after filing with the Commission of any document which is incorporated by reference into a registration statement covering such Holder, deliver a copy of such document to such Holder unless such document is available on the Commission’s ▇▇▇▇▇ system (or any successor electronic filing system);
(n) on or prior to the date on which the registration statement is declared effective, use reasonable best efforts to register or qualify, and cooperate with such Holder, the underwriter or underwriters, if any, and their counsel in cooperation connection with the registration or qualification of, the securities covered by the registration statement for offer and sale under the securities or blue sky laws of each state and other jurisdiction of the United States as the Holder or managing underwriter or underwriters, if any, requests in writing, to use reasonable best efforts to keep each such Registration or qualification effective, including through new filings, or amendments or renewals, during the Effectiveness Period do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) covered by the applicable registration statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject itself to taxation in any such jurisdiction or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
(o) cooperate with such Holder and the managing underwriter or underwriters, if any, to list facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, may request;
(p) use reasonable best efforts to cooperate and assist in any filings required to be made with FINRA;
(q) use reasonable best efforts to cause the securities covered by the registration statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies within the United States 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 on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable Shares;
(r) to the Company.
extent the Company is a well-known seasoned issuer (ixwithin the meaning of Rule 405 under the 1933 Act) In (“WKSI”) at the event time any Request Notice is submitted to the offering Company pursuant to Section 2.02 which requests that the Company file an automatic shelf registration statement (as defined in Rule 405 under the 1933 Act) (an “automatic shelf registration statement”) on a Shelf Registration Statement, the Company shall file an automatic shelf registration statement that covers those Registrable Shares which are requested to be registered. If the Company does not pay the filing fee covering Registrable Shares at the time the automatic shelf registration statement is filed, the Company agrees to pay such fee at such time or times as the Registrable Shares are to be sold. If the Company files an Underwritten Offeringautomatic shelf registration statement covering any Registrable Shares, it shall use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the 1933 Act)) during the period during which such automatic shelf registration statement is required to remain effective. If an automatic shelf registration statement has been outstanding for at least three (3) years, at the end of the third year, refile a new automatic shelf registration statement covering the Registrable Shares, and, if at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, use its reasonable best efforts to obtain a “cold comfort” letter from refile on Form S-3 (or any successor form) and, if such form is not available, Form S-1 and keep such registration statement effective during the independent public accountants for the Company in customary form and covering period during which such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order registration statement is required to effect an Underwritten Offering of such Registrable Securities.be kept effective; and
(xs) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain deliver such certificates other documents and opinions instruments as may be reasonably necessary to facilitate the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder registration and disposition of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
Shares (c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except Common Shares in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.Synthetic Second
Appears in 2 contracts
Sources: Registration Rights Agreement (Duck Creek Technologies, Inc.), Registration Rights Agreement (Duck Creek Technologies, Inc.)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, the Company willshall, as expeditiously as possible:
possible (i) Prepare andbut, in any event (i) if the Company is not then eligible to use a shelf registration statement, within sixty 45 days or (60ii) calendar days if the Company is then eligible to use a shelf registration statement, within 30 days, after a Demand Registration Request in the end case of Section 2.4(a) below), in connection with the Registration of the period within which requests Registrable Securities and, where applicable, a takedown off of a shelf registration statement:
(a) prepare and file all filings with the SEC and FINRA required for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month consummation of the Company’s fiscal year)offering, file including preparing and filing with the Commission SEC a registration statement with respect to on an appropriate registration form of the SEC for the disposition of such Registrable Securities in accordance with the intended method of disposition thereof, which registration form (i) shall be selected by the Company and (ii) shall, in the case of a shelf registration, be available for the sale of the Registrable Securities by the selling Holders thereof and such registration statement shall comply as to form in all material respects with the requirements of the applicable registration form and include all financial statements required by the SEC to be filed therewith, and the Company shall use its reasonable best efforts to cause such registration statement to become effective and remain effective; provided that, continuously effective from the date such registration statement is declared effective until the earliest to occur (A) the first date as of which all of the Registrable Securities included in the registration statement have been sold or (B) a period of 90 days in the case of an underwritten offering effected pursuant to a registration statement other than a shelf registration statement and a period of three years in the case of a shelf registration provided for statement (provided, however, that as far in Section 6.1 or 6.2 hereof, advance as reasonably practicable before filing a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company will furnish to one counsel for the counsel Holders participating in the planned offering (selected by the Requesting Holders Majority Participating Holders) and to one counsel for the Manager, if any, copies of all such documents proposed to be filedfiled (including all exhibits thereto), which documents will be subject to the timely reasonable review and reasonable review comment of such counsel; and provided, further, counsel (provided that the Company may discontinue shall be under no obligation to make any changes suggested by the Holders), and the Company shall not file any registration of its securities that is being effected pursuant statement or amendment thereto, any prospectus or supplement thereto or any free writing prospectus related thereto to Section 6.2 at any time prior to which the effective date of Initiating Holders or the registration statement relating thereto.underwriters, if any, shall reasonably object);
(iib) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and such free writing prospectuses and Exchange Act reports as may be necessary to keep such registration statement continuously effective for a the period as may be requested by the Requesting Holders not exceeding nine (9set forth in Section 2.4(a) months and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (and, in connection with any shelf registration statement., file one or more prospectus supplements pursuant to Rule 424 under the Securities Act covering Registrable Securities upon the request of one or more Holders wishing to offer or sell Registrable Securities whether in an underwritten offering or otherwise);
(iiic) Furnish in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Manager of such offering;
(d) furnish, without charge, to each holder of Registrable Securities covered by the registration statement Participating Holder and to each underwriter, if any, of the securities covered by such Registrable Securities registration statement such number of copies of a such registration statement, each amendment and supplement thereto (in each case including all exhibits), the prospectus included in such registration statement (including each preliminary prospectus and preliminary any summary prospectus), any other prospectus for delivery filed under Rule 424 under the Securities Act and each free writing prospectus utilized in connection therewith, in each case, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller and underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable laws of each such registration statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto) or free writing prospectus by each such Participating Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or prospectus);
(ive) Use use its reasonable best efforts to register or qualify such the Registrable Securities covered by such registration statement under such other securities or state “blue sky sky” laws of such jurisdictions as each seller any sellers of Registrable Securities or any managing underwriter, if any, shall reasonably requestrequest in writing, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller sellers or underwriter, if any, to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictionsjurisdictions (including keeping such registration or qualification in effect for so long as such registration statement remains in effect), except that in no event shall the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction wherewhere it would not, but for the requirements of this Section 6.3(a)(ivparagraph (e), it is not then be required to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction;
(f) promptly notify each Participating Holder and each managing underwriter, if any: (i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any free writing prospectus has been filed and, with respect to the registration statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement 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 of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction where it is not then so subject.
or the initiation of any proceeding for such purpose; (v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable of the seller or sellers thereof to consummate the disposition existence of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) any fact of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if which the Company becomes aware that which results in the registration statement or any amendment thereto, the prospectus included in related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such registration statement, as then in effect, includes purchaser containing an untrue statement of a material fact or omits omitting to state any a material fact required to be stated therein or necessary to make the statements any statement therein not misleading misleading; and (vi) if at any time the representations and warranties contemplated by any underwriting agreement, securities sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effectiveall material respects; and, at if the request of any notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such sellerseller and each underwriter, deliver if any, a reasonable number of copies of an a prospectus supplemented or amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.under which they were made not misleading;
(viig) Otherwise use its best efforts comply (and continue to comply comply) with all applicable rules and regulations of the Commission SEC (including, without limitation, maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) and internal control over financial reporting (as defined in Exchange Act Rule 13a-15(f)) in accordance with the Exchange Act), and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days reasonably practicable after the close effective date of the period covered thereby registration statement (one hundred eighty (180) calendar and in any event within 45 days, or 90 days in case the period covered corresponds to if it is a fiscal year year, after the end of the Companysuch 12 month period described hereafter), an earnings statement (which need not be audited) covering the period of at least 12 consecutive months beginning with the first day of the Company Company’s first fiscal quarter after the effective date of the registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiih) Use its best efforts in cooperation with the underwriters, if any, to list (i) (A) cause all such Registrable Securities covered by such registration statement to be listed on each the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (B) if no similar securities are then so listed, to cause all such Registrable Securities to be listed on a national securities exchange and, without limiting the generality of the foregoing, take all actions that may be required by the Company as they may reasonably designatethe issuer of such Registrable Securities in order to facilitate the managing underwriter’s arranging for the registration of at least two market makers as such with respect to such shares with FINRA, which securities exchanges shall be acceptable and (ii) comply (and continue to comply) with the requirements of any self-regulatory organization applicable to the Company., including without limitation all corporate governance requirements;
(ixi) In cause its senior management, officers and employees to participate in, and to otherwise facilitate and cooperate with the event preparation of the offering is registration statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions, due diligence sessions and rating agency presentations) taking into account the Company’s reasonable business needs;
(j) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(k) enter into such customary agreements (including, if applicable, an Underwritten Offeringunderwriting agreement) and take such other actions as the Majority Participating Holders or the underwriters shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (it being understood that the Holders of the Registrable Securities which are to be distributed by any underwriters shall be parties to any such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such Holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters);
(l) use its reasonable best efforts (i) to obtain a “cold comfort” letter an opinion from the Company’s counsel, including local and/or regulatory counsel, and a comfort letter and updates thereof from the Company’s independent public accountants for who have certified the Company Company’s financial statements included or incorporated by reference in such registration statement, in each case, in customary form and covering such matters of the type as are customarily covered by such opinions and comfort letters as (including, in the Requesting Holders reasonably request in order to effect an Underwritten Offering case of such Registrable Securities.comfort letter, events subsequent to the date of such financial statements) delivered to underwriters in underwritten public offerings, which opinion and letter shall be dated the dates such opinions and comfort letters are customarily dated and otherwise reasonably satisfactory to the underwriters, if any, and to the Majority Participating Holders, and (ii) furnish to each Holder participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such underwriter;
(xm) Execute deliver promptly to counsel for each Participating Holder and deliver to each managing underwriter, if any, copies of all instruments correspondence between the SEC and documents (including in an Underwritten Offering an underwriting agreement in customary form) the Company, its counsel or auditors and take such other actions and obtain such certificates and opinions as all memoranda relating to discussions with the Requesting Holders reasonably request in order SEC or its staff with respect to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities willthe registration statement, and, upon receipt of any notice from such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by counsel for each Participating Holder, by counsel for any underwriter, participating in any disposition to be effected pursuant to such registration statement and by any accountant or other agent retained by any Participating Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the happening Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such counsel for a Participating Holder, counsel for an underwriter, accountant or agent in connection with such registration statement;
(n) use its reasonable best efforts to obtain the prompt withdrawal of any event order suspending the effectiveness of the kind described in Section 6.3(a)(vi)registration statement, forthwith discontinue disposition or the prompt lifting of any suspension of the qualification of any of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).for sale in any jurisdiction, in each case, as promptly as reasonably practicable;
(co) If provide a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of CUSIP number for all Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registrationSecurities, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other later than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement;
(p) use its best efforts to make available its senior management, employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company’s businesses and the requirements of the marketing process) in marketing the Registrable Securities in any underwritten offering;
(q) promptly prior to the filing of any document which is to be incorporated by reference into the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the prospectus (after the initial filing of such registration statement), and prior to the filing of any free writing prospectus, provide copies of such document to counsel for each Participating Holder and to each managing underwriter underwriter, if any, and make the Company’s representatives reasonably available for discussion of such document and make such changes in such document concerning the Participating Holders prior to limit its right under this Section 6.3.the filing thereof as counsel for the Participating Holders or underwriters may reasonably request;
(fr) In furnish to counsel for each Participating Holder and to each managing underwriter, without charge, at least one signed copy of the registration statement and any registration pursuant to Section 6.1 post-effective amendments or 6.2supplements thereto, each holder of Registrable Securities requesting to be included including financial statements and schedules, all documents incorporated therein by reference, the prospectus contained in such registration shall furnish to statement (including each preliminary prospectus and any summary prospectus), any other prospectus filed under Rule 424 under the Company Securities Act and all such information as the Company may reasonably request from such holder concerning such holder exhibits (including those incorporated by reference) and its intended method of distribution of Registrable Securities to enable the Company to include such information any free writing prospectus utilized in the registration statement.connection therewith;
(gs) It is understood that in any Underwritten Offering in addition to any shares of stock (cooperate with the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company Participating Holders and the other sellers shall be allocated between initial shares managing underwriter, if any, to facilitate the timely preparation and option shares as agreed or, in the absence delivery of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.ce
Appears in 2 contracts
Sources: Registration Rights Agreement (Signify Health, Inc.), Registration Rights Agreement (Signify Health, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 4.1, 4.2 and 4.3, the Company will, shall as expeditiously as reasonably possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; , and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant such review to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.be conducted with reasonable promptness;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the expiration of one year after such registration statement becomes effective;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement;
(viii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose; and
(4) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.misleading;
(viixi) Otherwise make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holdersSelling Holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company Company’s first full quarter after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 thereunder;
(viiixiii) Use use its reasonable best efforts in cooperation to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the underwriterssellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate; and
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi4.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c4.6(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not give such notice, any applicable 60 day or one year period during which such registration statement must remain effective pursuant to this Agreement shall be required extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 4.6(a)(ix) to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that date when all such requested Registrable Securities may then be sold without registration under Rule 144 Selling Holders shall receive such a supplemented or other provision of amended prospectus and such prospectus shall have been filed with the Securities ActCommission.
Appears in 2 contracts
Sources: Shareholder Agreement (Seacastle Inc.), Shareholder Agreement (Seacastle Inc.)
Registration Procedures. (a) If and whenever the Company is Whenever any Registrable Securities are required to be registered pursuant to this Agreement, the Corporation shall use its reasonable best efforts to effect or cause the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 6.1 or 6.2 hereof, intended method of disposition thereof and pursuant thereto the Company will, Corporation shall as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC a registration statement with respect to such Registrable Securities on Form S-1 or such other form of general applicability satisfactory to the managing underwriter (or if the offering is not underwritten, the holders of a majority of Registrable Securities included therein) and use its reasonable best efforts to cause such registration statement to become and remain effective; effective (provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company Corporation may delay or discontinue any registration of its securities that is being statement effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(iiunder SECTION 4.1 in accordance with SECTION 4.1(d) Prepare or SECTION 4.2 in accordance with SECTION 4.2(f)) and prepare and file with the Commission SEC such amendments (including and post-effective amendments) and supplements amendments to such registration statement and supplements to the prospectus used in connection therewith as may be necessary to keep such registration statement effective under the Securities Act and the blue sky laws of any applicable state for a period as may of not less than 90 days in the case of an underwritten offering, and in any other offering, until the disposition of all Registrable Securities covered by such registration statement, but not longer than a period of six months, unless at the expiration of such six month period, less than 75% of the Registrable Securities covered by such Registration Statement have been sold, then such period shall automatically be requested extended for six additional months; provided that at any time after the registration statement has been continuously effective for six consecutive months, if the Corporation determines in its reasonable business judgment that having such registration statement remain in effect would materially interfere with any financing, refinancing, acquisition, disposition, corporate reorganization or other material corporate transaction or development involving the Corporation or any of its Subsidiaries or at any time after such registration statement has been declared effective if the Corporation becomes the subject of an unsolicited tender offer for at least a majority of its equity securities, the Corporation may, upon prior written notice to each holder of Registrable Securities included therein, suspend such registration statement for a period of not more than ninety (90) days, and in no event shall the Corporation be entitled to exercise such right more than once in any 12-month period;
(b) before filing a registration statement or prospectus or any amendments or supplements thereto or incorporating any document by reference therein, the Corporation shall furnish to the holders of Registrable Securities included in such registration statement copies of all such documents proposed to be filed or incorporated therein, which documents shall be subject to the review and comment of such holders and one counsel selected by such holders;
(c) notify in writing each holder of Registrable Securities included in such registration statement of (i) the filing and effectiveness of such registration statement or any amendment or post-effective amendments thereto and the prospectus and any supplement thereto, (ii) any request by the Requesting Holders not exceeding nine SEC for amendments or post-effective amendments to the registration statement or supplements to the prospectus or for additional information, (9iii) months the issuance by the SEC of any stop order suspending the effectiveness of such registration statement or the initiation or threatening of any proceedings for that purpose, and (iv) the receipt by the Corporation of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(d) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such the period of, and in accordance with the intended methods of of, disposition by the seller or sellers thereof as set forth in such registration statement.;
(iiie) Furnish furnish, without charge, to each holder of Registrable Securities covered by the included in a registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of a such registration statement, the prospectus included in such registration statement (including each preliminary prospectus), each amendment and preliminary prospectus for delivery in conformity with the requirements of the Securities Actsupplement thereto, and such other documents as such Person holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities included therein owned by such holder and the Corporation hereby consents to the use of each prospectus or any supplement thereto by each such holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such registration statement or any amendment thereto;
(ivf) Use use its reasonable best efforts to register or qualify such all Registrable Securities covered by such included in a registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall any holder of such Registrable Securities reasonably request, requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller holder to consummate the disposition in such jurisdictions of the such Registrable Securities owned by such seller in such jurisdictions, except (provided that the Company Corporation shall not for any such purpose be required to (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(ivSUBPARAGRAPH (f), it is not then so qualified, or (Bii) to subject itself to taxation in any such jurisdiction, jurisdiction or (Ciii) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction);
(vg) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately immediately notify each seller holder of Registrable Securities covered by such included in a registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to misleading, and shall prepare and file an appropriate a supplement or amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.misleading;
(viih) Otherwise cause all Registrable Securities included in a registration statement to be listed on each securities exchange on which similar securities issued by the Corporation are then listed and, if not so listed, but similar securities are then listed on the NASD automated quotation system, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use its reasonable best efforts to secure designation of all such Registrable Securities as a NASDAQ national market system security within the meaning of Rule 11Aa2-1 of the SEC or failing that, at such time as the Corporation becomes eligible for such authorization, to secure NASDAQ authorization for such Registrable Securities if available and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD;
(i) if the offering is underwritten, use its reasonable best efforts to furnish on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration statement, and to the extent required by any underwriting agreement or from time to time upon request by any holder of Registrable Securities in connection with its disposition of its Registrable Securities under such registration statement: (i) an opinion dated such date of counsel representing the Corporation for the purposes of such registration, addressed to the underwriters and to each such holder, stating that such registration statement has become effective under the Securities Act and that (A) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) the registration statement, the related prospectus and each amendment or supplement thereof appear on their face to be appropriately responsive in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or financial data contained therein) and (C) to such other effect as may be reasonably requested by counsel for the underwriters or by such holder or its counsel if such offering is not underwritten and (ii) to the extent accounting standards then permit, a letter dated such date from the independent public accountants retained by the Corporation, addressed to the underwriters and to each such holder, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Corporation included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five Business Days prior to the date of such letter) with respect to such registration as such underwriters, or such holder if such offering is not underwritten, may reasonably request;
(j) provide a transfer agent and registrar for all Registrable Securities included in a registration statement not later than the effective date of such registration statement, and a CUSIP number for all such Registrable Securities and provide the applicable transfer agent with printed certificates or instruments for such Registrable Securities which are in a form eligible for deposit with Depositary Trust Corporation and otherwise meeting the requirements of any securities exchange on which such Registrable Securities are then listed;
(k) cooperate with the holders of Registrable Securities included in a registration statement and the underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold not bearing any restrictive legends; and to enable such Registrable Securities to be in such denominations and registered in such names as the underwriters may request at least two Business Days prior to any sale of such Registrable Securities to the underwriters;
(l) enter into such customary agreements (including underwriting agreements in customary form) as the underwriters of any registration statement pursuant to an underwritten offering, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares);
(m) make available for inspection by any holder of Registrable Securities included in a registration statement, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Corporation as they deem necessary to conduct their due diligence review, and cause the Corporation's officers, directors, employees and independent accountants to supply all information reasonably requested by any such holder, underwriter, attorney, accountant or agent in connection with such registration statement;
(n) otherwise comply with the Securities Act, the Exchange Act, all applicable rules and regulations of the Commission SEC and all applicable state blue sky and other securities laws, rules and regulations, and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy statements satisfying the provisions of Section 11(a) of the Securities Act.
, no later than 30 days after the end of any 12 month period (viii) Use its best efforts in cooperation or 90 days if the end of such 12 month period coincides with the underwritersend of a fiscal quarter or fiscal year, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ixrespectively) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as Corporation (A) commencing at the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt end of any notice from the Company of the happening of any event of the kind described month in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s which Registrable Securities are included sold to underwriters in an underwritten offering, or, (B) if not sold to underwriters in such registrationan offering, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under beginning within the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period first three months commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.the registration statement, which statements shall cover said 12 month periods;
(do) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, permit any holder of Registrable Securities requesting which, in such holder's sole and exclusive judgment, might be deemed to be included an underwriter or a controlling person of the Corporation, to participate in the preparation of such registration may elector comparable statement and to require the insertion therein of material, furnished to the Corporation in writing, which in the reasonable judgment of such holder and its counsel should be included; and
(p) if the offering is underwritten, promptly upon notification to the Corporation from the managing underwriter of the price at which the securities are to be sold under such registration statement, and, in writingany event, prior to the effective date of the registration statement filed in connection with such registration, not the Corporation shall advise each holder requesting inclusion of Registrable Securities in such registration statement of such price. If such price is below the price which is acceptable to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each a holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything offering, then such holder shall have the right, by written notice to the contrary hereinCorporation given prior to the effectiveness of such registration statement, the Company shall not be required to include any withdraw its request to have its Registrable Securities of any holder included in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Actstatement.
Appears in 2 contracts
Sources: Stockholders Agreement (Exective Risk Indemnity Inc), Stockholders Agreement (Aegon Usa Investment Management Inc/Ia)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 4.1, 4.2 and 4.3, the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities which are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating thereto; provided, further that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; , and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant such review to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.be conducted with reasonable promptness;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading;
(xi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the light offering, marketing or selling of the circumstances then existing.Registrable Securities;
(viixvi) Otherwise if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xvii) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xviii) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after all reporting requirements under the close rules and regulations of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Exchange Act. The Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwritersmay require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi4.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c4.6(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not give such notice, any applicable 60 day period during which such registration statement must remain effective pursuant to this Agreement shall be required extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 4.6(a)(ix) to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that date when all such requested Registrable Securities may then be sold without registration under Rule 144 Selling Holders shall receive such a supplemented or other provision of amended prospectus and such prospectus shall have been filed with the Securities ActCommission.
Appears in 2 contracts
Sources: Shareholder Agreements (Missouri & Northern Arkansas Railroad Co), Stockholders Agreement (Railamerica Inc /De)
Registration Procedures. If the Company files a registration statement pursuant to Section 2(a), 2(b) or 2(c), the following provisions shall apply:
(a) If and whenever At or before the Effective Time of the Exchange Offer or the Shelf Registration, as the case may be, the Company is required shall qualify the Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to use its best efforts the applicable provisions of the Indenture.
(c) If the Company elects to effect or cause file an Exchange Registration Statement pursuant to Section 2(b) above, in connection with the Company’s obligations with respect to the registration of any Registrable Exchange Securities under as contemplated by Section 2(b) (the Securities Act as provided in Section 6.1 or 6.2 hereof“Exchange Registration”), the Company will, as expeditiously as possibleshall:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given use its commercially reasonable efforts to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect an Exchange Registration Statement on any form which may be utilized by the Company and which shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to such Registrable Securities be effected as contemplated by Section 2(b), and use its best commercially reasonable efforts to cause such registration statement Exchange Registration Statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 effective on or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to 330 days after the effective date of the registration statement relating thereto.Issue Date;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement Exchange Registration Statement and the prospectus used in connection therewith included therein as may be necessary to keep effect and maintain the effectiveness of such registration statement effective Exchange Registration Statement for a period the periods and purposes contemplated in Section 2(b) hereof and as may be requested required by the Requesting Holders not exceeding nine (9) months applicable rules and to comply with the provisions regulations of the Securities Act with respect Commission and the instructions applicable to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, form of such Registrable Exchange Registration Statement, and promptly provide each broker-dealer holding Exchange Securities with such number of copies of a the prospectus and preliminary prospectus for delivery included therein (as then amended or supplemented), in conformity in all material respects with the requirements of the Securities ActAct and the rules and regulations of the Commission thereunder, as such broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or received copies of the prospectus included in such registration statement, and confirm such other documents as such Person may reasonably request advice in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably requestwriting, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) when such Exchange Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to qualify to do business as a foreign corporation in such Exchange Registration Statement or any jurisdiction wherepost-effective amendment, but for when the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A)same has become effective, (B) and of any request by the Commission for amendments or supplements to such Exchange Registration Statement or prospectus or for additional information, (C) of Section 6.3(a)(ivthe issuance by the Commission of any stop order suspending the effectiveness of such Exchange Registration Statement or the initiation of any proceedings for that purpose, (D) hereof.
of the receipt by the Company of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, or (viE) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time during the Resale Period when a prospectus relating thereto is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act within and the appropriate period mentioned in Section 6.3(a)(ii), if rules and regulations of the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; ;
(iv) in the event that the Company would be required, pursuant to Section 3(c)(iii)(E) above, to notify any broker-dealers holding Exchange Securities, use its best commercially reasonable efforts to prepare and file an appropriate amendment or supplement furnish as soon as practicable to each such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver broker-dealer a reasonable number of copies of an a prospectus supplemented or amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesExchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder and shall not include 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 in the light of the circumstances then existing.;
(v) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;
(vi) use its commercially reasonable efforts to (A) register or qualify the Exchange Securities under the state securities laws or blue sky laws of such U.S. jurisdictions as any participating holder of the Registrable Securities reasonably requests in writing no later than the commencement of the Exchange Offer, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions; provided, however, that the Company shall not be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(c)(vi), (2) consent to general service of process in any such jurisdiction or (3) make any changes to its certificate of incorporation, by-laws or other organizational document, or any agreement between it and any of its equityholders;
(vii) Otherwise use its best efforts to provide a CUSIP number for all Exchange Securities, not later than the consummation of the Exchange Offer; and
(viii) comply in all material respects with all applicable rules and regulations of the Commission Commission, and make generally available to its security holders, in each case securityholders as soon as practicable, practicable but not no later than ninety (90) calendar days eighteen months after the close effective date of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company)such Exchange Registration Statement, an earnings earning statement of the Company which will satisfy the provisions of and its subsidiaries complying with Section 11(a) of the Securities Act.
Act (viii) Use its best efforts in cooperation with including, at the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to option of the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(viRule 158 thereunder), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If In connection with the Company’s obligations with respect to any Shelf Registration, the Company shall:
(i) use its commercially reasonable efforts to prepare and file with the Commission, as promptly as reasonably practicable, a registration Shelf Registration Statement on any form which may be utilized by the Company and which shall register all of the Registrable Securities (or in the case of a Shelf Registration Statement filed pursuant to Section 6.1 2(c)(iii), the Registrable Securities held by the Holders) for resale by the holders thereof in accordance with such method or 6.2 involves methods of disposition as may be specified in the applicable Notice and Questionnaire by such of the holders as, from time to time, may be Electing Holders and use its commercially reasonable efforts to cause such Shelf Registration Statement to become effective within the time periods specified in Section 2(a) or (c), as applicable;
(ii) not less than 15 calendar days prior to the Effective Time of the Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Company by the deadline for response set forth therein; provided, however, holders of Registrable Securities shall have at least 13 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an Underwritten OfferingElecting Holder, promptly send a Notice and Questionnaire to such holder; provided that the Company shall not be required to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities until such holder has returned a completed and signed Notice and Questionnaire to the Company;
(iv) as soon as reasonably practicable prepare and file with the Commission such amendments and supplements to such Shelf Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period specified in Section 2(a) or 2(c) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders copies of any such supplement or amendment as soon as practicable following its filing with the Commission; provided that, notwithstanding the foregoing, the Company agreesmay suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate an Exchange Offer within the required time period, if so required such action occurs following the consummation of the Exchange Offer;
(v) comply in all material respects with the provisions of the Securities Act with respect to the disposition of all of the Registrable Securities covered by such Shelf Registration Statement in accordance with the intended methods of disposition by the managing underwriterElecting Holders provided for in such Shelf Registration Statement;
(vi) for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in Section 2(a) or 2(c), as applicable, make reasonably available at reasonable times at the Company’s principal place of business or such other reasonable place for inspection by a representative of, and not more than one counsel acting for, Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding (the “Majority Electing Holders”) and any underwriter participating in the distribution of the Registrable Securities being sold (including any person who may be deemed an underwriter within the meaning of Section 2(a)(ii) of the Securities Act) such relevant financial and other pertinent information and books and records of the Company, and use its commercially reasonable efforts to cause the officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing investigation and information gathering shall be coordinated on behalf of all such parties by one counsel designated by and on behalf of all such parties and provided, further, that each such party shall be required (pursuant to an agreement in form and substance reasonably satisfactory to the Company) to maintain in confidence and not to effect disclose to any other person any information or records reasonably designated by the Company as being confidential, until such time as (A) such information becomes a matter of public sale record (whether by virtue of its inclusion in such registration statement or distribution otherwise except as a result of a breach of this or any other obligation of confidentiality to the Company known to such party), or (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter or any such court, agency or body requests such information from such person in connection with any examination, review or investigation (subject to the requirements of such order, subpoena or request, and only after such person shall have given the Company prompt prior written notice of such requirement so that the Company, at its equity expense, may undertake appropriate action to prevent disclosure of such information or debt securitiesrecords) or such disclosure is necessary in the opinion of counsel to establish a reasonable investigation within the meaning of Section 11 of the Securities Act in connection with any such subpoena, order, examination, review or investigation, or (C) such information is required to be set forth in such Shelf Registration Statement or the prospectus included therein or in an amendment to such Shelf Registration Statement or an amendment or supplement to such prospectus in order that such Shelf Registration Statement, prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the Commission and does not contain an untrue statement of a material fact or securities convertible into omit to state therein a material fact required to be stated therein or exchangeable or exercisable for necessary to make the statements therein not misleading in light of the circumstances then existing;
(vii) promptly notify each of the Electing Holders and any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of thereof and confirm such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, advice in writing, prior (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment or related Issuer Free Writing Prospectus, has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Shelf Registration Statement or prospectus or related Issuer Free Writing Prospectus, or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the effective date suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose or (E) if at any time when a prospectus is required to be delivered under the Securities Act, that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(viii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with or any post-effective amendment thereto at the Company earliest practicable date;
(ix) if requested by any managing underwriter or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 Majority Electing Holders, promptly incorporate in a prospectus supplement or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all post-effective amendment such information as is required by the Company may reasonably request from such holder concerning such holder applicable rules and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) regulations of the initial shares (Commission and as such managing underwriter or such other maximum amount as Majority Electing Holders shall specify should be included therein relating to the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis terms of the relative number sale of shares of such Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything Securities, including information with respect to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.princ
Appears in 2 contracts
Sources: Exchange and Registration Rights Agreement (Music123, Inc.), Exchange and Registration Rights Agreement (Music123, Inc.)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 4.1, 4.2 and 4.3, the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effectiveeffective pursuant to the terms of this Agreement; provided thatprovided, in however, that the case Company may discontinue any registration of a its securities that are not Registrable Securities at any time prior to the effective date of the registration provided for in Section 6.1 or 6.2 hereofstatement relating to such securities; provided, further, that before filing a such registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities that are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of and comment by such counsel; and provided, further, counsel (it being understood that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior counsel to the effective date of the registration statement relating thereto.Selling Holders will conduct its review and provide any comments promptly);
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 60 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 60 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such seller;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best use commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NYSE or the Nasdaq Stock Market;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any seller, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A), ) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading;
(xi) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Common Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the light offering, marketing or selling of the circumstances then existing.Registrable Securities;
(viixvi) Otherwise if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities;
(xvii) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA; and
(xviii) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after all reporting requirements under the close rules and regulations of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Exchange Act. The Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwritersmay require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common shares in underwriting agreements with respect to offerings of common shares for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the sellers of such Registrable Securities), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi4.5(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of the Registrable Securities pursuant to the applicable registration statement covering such Registrable Securities and prospectus relating thereto until such holderSelling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c4.5(a)(ix) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesand, if so required directed by the managing underwriterCompany, not deliver to effect any public sale or distribution the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of any the prospectus current at the time of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any receipt of such equity or debt securities, as notice relating to such Registrable Securities. In the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, event the Company shall not give such notice, any applicable 60 day period during which such registration statement must remain effective pursuant to this Agreement shall be required extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 4.5(a)(ix) to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that date when all such requested Registrable Securities may then be sold without registration under Rule 144 Selling Holders shall receive such a supplemented or other provision of amended prospectus and such prospectus shall have been filed with the Securities ActCommission.
Appears in 2 contracts
Sources: Shareholder Agreement (SeaCube Container Leasing Ltd.), Shareholder Agreement (SeaCube Container Leasing Ltd.)
Registration Procedures. (a) If and whenever In connection with the Company is required to use its best efforts to effect or cause the Company’s registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofobligations hereunder, the Company will, as expeditiously as possibleshall:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (amendments, including post-effective amendments) and supplements , to such registration statement a Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to the Securities Act; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a period Registration Statement or any amendment thereto and provide as may be requested by the Requesting Holders not exceeding nine (9) months promptly as reasonably possible to Investor true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Company may excise any information contained therein which would constitute material non-public information as to Investor); and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act of 1934, as amended (the “Exchange Act”) with respect to the disposition of all securities Registrable Securities covered by such registration statement a Registration Statement during such the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the seller or sellers thereof Investor set forth in such registration statementRegistration Statement as so amended or in such Prospectus as so supplemented.
(iiib) Furnish If during the Effectiveness Period the Company becomes eligible to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of file a prospectus and preliminary prospectus for delivery in conformity with the requirements of Registration Statement on Form S-3 under the Securities ActAct (“Form S-3”), the Company shall promptly convert the Initial Registration Statement and such other documents any Additional Registration Statement, as such Person may reasonably request in order applicable, to facilitate the public sale or other disposition of the Registrable Securitiesa Form S-3.
(ivc) Use its best efforts Notify Investor (which notice shall, pursuant to register clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one (1) Business Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Business Day following the day (i)(A) when a Prospectus or qualify such Registrable Securities covered by such registration statement under such other securities any Prospectus supplement or blue sky laws post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a “review” of such jurisdictions as each seller shall reasonably requestRegistration Statement and whenever the Commission comments in writing on such Registration Statement, and do (C) with respect to a Registration Statement or any and post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus, (iii) of the issuance by the Commission or any other federal or state governmental authority of any “stop-order” suspending the effectiveness of a Registration Statement covering any or all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned or the initiation of any Proceedings for that purpose; (iv) of the receipt by such seller in such jurisdictions, except that the Company shall not of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for any such purpose be required (A) to qualify to do business as a foreign corporation sale in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take the initiation or threatening of any action which would subject it to general or unlimited service of process in any Proceeding for such jurisdiction where it is not then so subject.
purpose; (v) Use its best efforts to cause such Registrable Securities covered by such registration of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated or deemed to be registered incorporated therein by reference untrue in any material respect or qualified with that requires any revisions to a Registration Statement, Prospectus or approved by such other governmental agencies documents so that, in the case of a Registration Statement or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statementProspectus, as then in effectthe case may be, includes an it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existingunder which they were made, not misleading; use and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided that, any and all of such information shall remain confidential to Investor until such information otherwise becomes public, unless disclosure by Investor is required by law; provided, further, that notwithstanding Investor’s agreement to keep such information confidential, Investor makes no acknowledgement that any such information is material, non-public information.
(d) Use its best efforts to prepare avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or 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, at the earliest practicable moment.
(e) Furnish to Investor, without charge, at least one conformed copy of each such Registration Statement and file an appropriate each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the ▇▇▇▇▇ system (or successor thereto) need not be furnished in physical form.
(f) Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement to thereto by Investor in connection with the offering and sale of the Registrable Securities covered by such prospectus Prospectus and to cause such any amendment or supplement to become effective; andthereto, at except after the request giving of any notice pursuant to Section 3(c).
(g) The Company shall cooperate with any broker-dealer through which Investor proposes to resell its Registrable Securities in effecting a filing with FINRA, as requested by Investor, and the Company shall pay the filing fee required by such sellerfiling within two (2) Business Days of request therefor.
(h) Prior to any resale of Registrable Securities by Investor, deliver use its commercially reasonable efforts to register or qualify or cooperate with Investor in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by Investor under the securities or Blue Sky laws of such jurisdictions within the United States as Investor reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a reasonable number general consent to service of copies process in any such jurisdiction.
(i) Upon the occurrence of an amended any event contemplated by Section 3(c), as promptly as reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or supplemental prospectus as may amendment, including a post-effective amendment, to a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be necessary incorporated therein by reference, and file any other required document so that, as thereafter delivered to the purchasers of delivered, neither a Registration Statement nor such Registrable Securities, such prospectus shall not include Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies Investor in accordance with clauses (iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then existing.
(vii) Otherwise Investor shall suspend use of such Prospectus. The Company will use its best efforts to comply ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus for a period not to exceed ninety (90) calendar days (which need not be consecutive days) in any twelve (12) month period.
(j) Comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities ActCommission.
(viiik) Use its best efforts in cooperation with The Company may require Investor to furnish to the underwritersCompany a certified statement as to the number of shares of Common Stock beneficially owned by Investor and, if anyrequired by the Commission, the natural persons thereof that have voting and dispositive control over the shares. During any periods that the Company is unable to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable meet its obligations hereunder with respect to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition registration of the Registrable Securities pursuant solely because Investor fails to the registration statement covering furnish such Registrable Securities until such holder’s receipt information within three (3) Business Days of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi)Company’s request.
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Janus Resources, Inc.), Registration Rights Agreement (New Energy Technologies, Inc.)
Registration Procedures. (a) If and whenever in the case of the registration, qualification or compliance effected by the Company is required pursuant to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 3 hereof, the Company willwill keep each Holder reasonably advised in writing as to the initiation of each registration, qualification and compliance and as expeditiously as possibleto the completion thereof. With respect to any registration statement filed pursuant to Section 3, the Company shall:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such Securities, a registration statement to become on any form which (a) the Company then qualifies for, (b) counsel for the Company deems appropriate, and remain effective(c) is available for the resale of the Registrable Securities in accordance with the intended method(s) of distribution thereof; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that no later than five (5) business days before filing with the Commission a registration statement or prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of any registration statement, the Company will must (a) furnish to the underwriters, if any, and to Investor’s counsel selected by the Requesting Holders (“Investor’s Counsel”) copies of all such documents proposed to be filed (excluding any exhibits other than applicable underwriting documents), in substantially the form proposed to be filed, which documents will be are subject to the timely and reasonable review of the underwriters and such counsel; , and provided, further, that the Company may discontinue any registration (b) notify each Holder of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the Registrable Securities covered by such registration statement relating thereto.of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(ii) Prepare cause such registration statement to become effective prior to the Registration Deadline and remain effective at least for a period ending with the first to occur of (i) the sale of all Registrable Securities covered by the registration statement, or (ii) the availability under Rule 144 for the Holders to immediately freely resell without restriction all Registrable Securities covered by the registration statement (the “Effectiveness Period”);
(iii) if a registration statement is subject to review by the Commission, promptly respond to all comments and diligently pursue resolution of any comments to the satisfaction of the Commission;
(iv) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by during the Requesting Holders not exceeding nine (9) months Effectiveness Period and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods method(s) of disposition by the seller or sellers thereof set forth in such registration statement.;
(iiiv) Furnish furnish, without charge, to the Holder one (1) signed copy of such registration statement (excluding any exhibits thereto other than applicable underwriting documents), each amendment and supplement thereto (including one (1) conformed copy to each holder of Registrable Securities covered by the registration statement Holder and one (1) signed copy to each underwritermanaging underwriter and in each case including all exhibits thereto), if any, of such Registrable Securities and such number of copies of a the prospectus included in such registration statement (including each preliminary prospectus and preliminary any other prospectus for delivery filed under Rule 424 under the Securities Act) as such Holders may request, in conformity with the requirements of the Securities Act, and such other documents as such Person Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Holder, but only during the Effectiveness Period;
(ivvi) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other applicable securities or blue sky laws of such jurisdictions as each seller shall reasonably requestany Holder, and underwriter, if any, of Registrable Securities covered by such registration statement as may be necessary for the marketability of the Registrable Securities (such request to be made by the time the applicable registration statement is deemed effective by the Commission) and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictionsHolder and each underwriter, except if any; provided that the Company shall is not for any such purpose be required to (Aa) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(iv4(a)(vi), it is not then so qualified(b) register as a securities dealer, or (Bc) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(vvii) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately immediately notify each seller Holder in writing of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that event which causes the prospectus included in such registration statement, as then in effect, includes statement to contain an untrue statement of a material fact or omits omit any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and furnish to such Holder a supplement or amendment to such prospectus (or prepare and file appropriate reports under the Exchange Act) so that, as thereafter delivered to the Investor, such prospectus does not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light misleading, unless suspension of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to of such prospectus and to cause otherwise is authorized herein or in the event of a Blackout Period, in which case no supplement or amendment need be furnished (or Exchange Act filing made) until the termination of such amendment suspension or supplement to become effectiveBlackout Period; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(viiviii) Otherwise use its best efforts comply, and continue to comply during the period that such registration statement is effective under the Securities Act, in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable respect to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters disposition of the type customarily all securities covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder of Registrable Securities willHolder agrees that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi)4(a)(vii) or of the commencement of a Blackout Period, forthwith such Holder shall discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holderHolder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c4(a)(vii) If a registration pursuant to Section 6.1 hereof or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent notice of the managing underwriterend of the Blackout Period, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offeringapplicable, the Company agreesand, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish Holder must deliver to the Company all copies (including, without limitation, any and all drafts), other than permanent file copies, then in such information as Holder’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company may reasonably request gives any such notice, the period mentioned in Section 4(a)(i) hereof is extended by the greater of (i) ten (10) business days or (ii) the number of days during the period from and including the date of the giving of such holder concerning such holder notice pursuant to Section 4(a)(vii) hereof to and its intended method of distribution including the date when each Holder of Registrable Securities to enable covered by such registration statement has received the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) copies of the initial shares (supplemented or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold amended prospectus contemplated by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationSection 4(a)(vii) hereof.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fortified Holdings Corp.), Registration Rights Agreement (Aegis Industries, Inc.)
Registration Procedures. (a) If and whenever the Company is required With respect to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofPiggyback Registration, the Company will, as expeditiously as possiblepracticable:
(i1) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Securities and Exchange Commission (the “Commission”) a registration statement with respect to such which includes the Registrable Securities and use its best all reasonable efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii2) Prepare prepare and file with the Commission such amendments (including and post-effective amendments) and supplements amendments to such the registration statement and the prospectus used in connection therewith as may be necessary to keep such the registration statement effective for a period of not less than 90 days (or such shorter period which will terminate when all Registrable Securities covered by such registration statement have been sold or withdrawn) cause the prospectus to be supplemented by any required prospectus supplement, and as may so supplemented to be requested by filed pursuant to Rule 424 under the Requesting Holders not exceeding nine (9) months Act; and to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such registration statement during such the applicable period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or supplement to the prospectus;
(iii3) Furnish furnish to any holder of Registrable Securities included in such registration statement and the underwriter or underwriters, if any, without charge, at least one confirmed copy of the registration statement and any post-effective amendment thereto, upon request, and such number of copies of the prospectus (including each preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein, as such holder or underwriter may request in order to facilitate the disposition of the Registrable Securities being sold by such holder (it being understood that the Company consents to the use of the prospectus and any amendment or supplement thereto by each holder of holding Registrable Securities covered by the registration statement and to each underwriterthe underwriter or underwriters, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity connection with the requirements offering and sale of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities the prospectus or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary amendment or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(ivsupplement thereto), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(v4) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller holder of Registrable Securities covered by included in such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii)Act, if when the Company becomes aware that of the occurrence of any event as a result of which the prospectus included in such registration statement, statement (as then in effect, includes an ) contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of the prospectus or any preliminary prospectus, in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; under which they were made) not misleading and, as promptly as practicable at the request of any such sellerholder, deliver prepare and file with the Commission and furnish a reasonable number of copies of an amended supplement or supplemental amendment to such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall will not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existing.under which they were made, not misleading;
(vii5) Otherwise use its best all reasonable efforts to comply with cause all applicable rules and regulations Registrable Securities included in such registration statement to be listed on each securities exchange on which the Common Stock is then listed, if any;
(6) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Commission registration statement at the earliest possible moment;
(7) on or prior to the date on which the registration statement is declared effective, use all reasonable efforts to register or qualify, and make generally available to its security holderscooperate with the holders of Registrable Securities included in such registration statement, the underwriter or underwriters, if any, and their counsel, in each case as soon as practicable, but not later than ninety (90) calendar days after connection with the close registration or qualification of the period Registrable Securities covered thereby (one hundred eighty (180) calendar days by the registration statement for offer and sale under the securities or blue sky laws of each state and other jurisdiction as any such holder or underwriter reasonably requests in case writing, to use all reasonable efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, during the period covered corresponds such registration statement is required to a fiscal year be kept effective and to do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Company)Registrable Securities covered by the applicable registration statement; provided, an earnings statement of that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which will satisfy the provisions would subject it to general service of Section 11(a) of the Securities Act.process in any such jurisdiction where it is not then so subject;
(viii) Use its best efforts in cooperation 8) cooperate with the holders of Registrable Securities covered by the registration statement and the managing underwriter or underwriters, if any, to list facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such holders may request;
(9) use all reasonable efforts to cause the Registrable Securities covered by the 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 securities; (l0) enter into such customary agreements (including, without limitation, an underwriting agreement in customary form) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters retained by the holders participating in an underwritten public offering, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(11) make available for inspection by any holder of Registrable Securities on each securities exchange included in such registration statement, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter (collectively, the “Inspectors”) all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”) as they may reasonably designate, which securities exchanges shall be acceptable reasonably necessary to enable the Inspectors to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such registration statement; provided that Records which the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed to the Company.Inspectors;
(ix12) In the event the offering is an Underwritten Offering, use its best all reasonable efforts to obtain a “cold comfort” letter from the Company’s independent public accountants for and an opinion of outside counsel to the Company Company, each in customary form and covering such matters of the type customarily covered by such “cold comfort” letters as or opinions of counsel; and
(13) cooperate with each seller of Registrable Securities and each underwriter participating in the Requesting Holders reasonably request in order to effect an Underwritten Offering disposition of such Registrable Securities.
Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) “NASD”). Each holder of Registrable Securities willSecurities, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), 4(b)(4) will forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
4(b)(4) or until it is advised in writing (cthe “Advice”) If a registration pursuant by the Company that the use of the prospectus may be resumed and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus, and, if so directed by the Company, such holder will, or will request the managing underwriter or underwriters, if any, to deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods mentioned in Section 6.1 or 6.2 hereof involves an Underwritten Offering, 4(b)(2) shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each holder seller of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under covered by each registration statement shall have received the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent copies of the managing underwriter, during a period commencing seven (7supplemented or amended prospectus contemplated by Section 4(b)(4) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3Advice.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Shareholders Agreement (Imax Corp), Shareholders Agreement (Imax Corp)
Registration Procedures. (a) If and whenever the Company is required under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSecurities, the Company willshall, as expeditiously as possiblepracticable:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and a registration under Section 2.2 or 2.3, use its best efforts to cause such a registration statement that registers such Registrable Securities to become and remain effective; provided thateffective for a period of 90 days or until all of such Registrable Securities have been disposed of (if earlier);
(b) furnish, in the case of a registration provided for in Section 6.1 or 6.2 hereof, at least five business days before filing a registration statement or that registers such Registrable Securities, a prospectus relating thereto or any amendments or supplements theretorelating to such a registration statement or prospectus, to each Holder, to any counsel to any Holder selling Registrable Securities (the Company will furnish "SELLING HOLDER") and to the one counsel selected by the Requesting Holders holders of a majority of such Registrable Securities (the "SELLING HOLDERS' COUNSEL"), copies of all such documents proposed to be filed, which and such other documents will as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by such Holders (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be subject filed so long as such successive drafts are supplied to such counsel in advance of the timely proposed filing by a period of time that is customary and reasonable review of such counsel; and provided, further, that under the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.circumstances);
(iic) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for at least the period set forth in Section 2.7(a) in the case of a registration under Section 2.2 or 2.3 or the period as may be requested by the Requesting Holders not exceeding nine specified in Section 2.1(b) or until all of such Registrable Securities have been disposed of (9if earlier) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the such Registrable Securities.;
(ivd) Use notify in writing any counsel to any Selling Holder and the Selling Holders' Counsel promptly (i) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each any seller shall of Registrable Securities reasonably request, requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsseller; PROVIDED, except HOWEVER, that the Company shall will not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction wherebusiness, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to general taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is would not then otherwise be required so subject.to do but for this paragraph (e);
(vf) Use furnish to each seller of such Registrable Securities such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such Holder may reasonably request in order to facilitate the public sale or other disposition of such Registrable Securities;
(g) use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vih) Immediately notify on a timely basis each seller of such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto to such Registrable Securities is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii)paragraph (a) of this Section, if of the Company becomes aware that happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; existing and, at the request of any such seller, deliver prepare and furnish to such seller a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers offerees of such Registrable Securitiesshares, such prospectus shall 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;
(i) make available for inspection by any counsel to any Selling Holder and the Selling Holders' Counsel or any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such underwriter (collectively, the "INSPECTORS"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the "RECORDS"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information (together with the Records, the "INFORMATION") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (i) the disclosure of such Information is necessary to avoid or correct a misstatement or omission in the registration statement, (ii) the release of such Information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) such Information has been made generally available to the public. The seller of Registrable Securities agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Information deemed confidential;
(j) in connection with any underwritten offering, use its best efforts to obtain from its independent certified public accountants "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(k) in connection with any underwritten offering, use its best efforts to obtain from its counsel an opinion or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same entity and which may not be the Company) for such Registrable Securities;
(m) issue to any underwriter to which any seller of Registrable Securities may sell shares in such offering certificates evidencing such Registrable Securities;
(n) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Subject to the provisions of this agreement, each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.
(viio) Otherwise remain current in its Commission reporting obligations and use its best efforts to remain eligible to file with the Commission on a Form S-3 registration statement for a secondary offering;
(p) list such Registrable Securities on any national securities exchange on which any shares of the Common Stock are listed or on NASDAQ if then included, or if the Common Stock is not listed on NASDAQ or any other United States national securities exchange, use its best efforts to qualify such Registrable Securities for trading on the OTC Bulletin Board, "pink sheets" or such other trading market for the Company's Securities;
(q) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.Commission; and
(viiir) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order take all other steps necessary to effect an Underwritten Offering the registration of such Registrable SecuritiesSecurities contemplated hereby.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Note Purchase Agreement (Serviceware Technologies Inc/ Pa), Registration Rights Agreement (Serviceware Technologies Inc/ Pa)
Registration Procedures. (a) If and whenever Subject to the other applicable provisions of this Agreement, in the case of each registration of Registrable Securities effected by the Company is required pursuant to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofArticle I, the Company will, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and promptly file with the Commission SEC a registration statement with respect to such Registrable Securities securities and use its best commercially reasonable efforts to cause such registration statement to become and remain effective; provided thateffective for the period of the distribution contemplated thereby, in accordance with the case applicable provisions of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.this Agreement;
(iib) Prepare prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith with such registration statement as may be necessary to keep such registration statement effective for a the period as may be requested by the Requesting Holders not exceeding nine specified in paragraph (9a) months above and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the Purchaser’s intended methods method of disposition by the seller or sellers thereof distribution set forth in such registration statement.statement for such period;
(iiic) Furnish furnish to each holder the Purchaser, the Purchaser’s legal counsel, the underwriters and the underwriters’ legal counsel, if any, copies of Registrable Securities covered by the registration statement and the prospectus included therein (including each preliminary prospectus) and any amendment or supplement thereto proposed to each underwriterbe filed and provide such legal counsel a reasonable opportunity to review and comment on such registration statement;
(d) if requested by the managing underwriter or underwriters, if any, or the Purchaser, promptly include in any prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters, if any, or the Purchaser may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 2.1(d) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(e) in the event that the Registrable Securities are being offered in an Underwritten Offering, furnish to the Purchaser and to the underwriters of the securities being registered such reasonable number of copies of a the registration statement, preliminary prospectus and preliminary final prospectus for delivery in conformity with as the requirements of the Securities Act, and Purchaser or such other documents as such Person underwriters may reasonably request in order to facilitate the public sale offering or other disposition of the Registrable Securities.such securities;
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissionsf) as may be necessary to enable promptly as reasonably practicable notify the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, Purchaser at any time when a prospectus relating thereto is required to be delivered under the Securities Act within or of the appropriate period mentioned in Section 6.3(a)(ii), if Company’s discovery of the Company becomes aware that occurrence of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in the light of the circumstances then existing; use its best efforts , and, subject to Section 2.2, at as promptly as is reasonably practicable, prepare and file an appropriate with the SEC a supplement or post-effective amendment or supplement to such registration statement or the related prospectus or any document incorporated therein by reference or file any other required document, and furnish to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver Purchaser a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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 or incomplete in the light of the circumstances then existing.;
(viig) Otherwise use its best commercially reasonable efforts to comply with all applicable rules register and regulations qualify (or exempt from such registration or qualification) the securities covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions within the Commission and make generally available United States as shall be reasonably requested in writing by the Purchaser; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to its security holders(i) qualify to do business in any jurisdictions where it would not otherwise be required to qualify but for this subsection or (ii) take any action that would subject it to general service of process in any such jurisdictions;
(h) in the event that the Registrable Securities are being offered in a public offering, enter into an underwriting agreement, a placement agreement or equivalent agreement, in each case as soon as practicablein accordance with the applicable provisions of this Agreement and take all such other actions reasonably requested by the Holders or the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, but not later than ninety if any) to expedite or facilitate the disposition of such Registrable Securities;
(90i) calendar days after in connection with an Underwritten Offering, the close Company shall cause its officers to use their commercially reasonable efforts to support the marketing of the period Registrable Securities covered thereby by such offering (one hundred eighty including participation in “road shows” or other similar marketing efforts);
(180j) calendar days in case use commercially reasonable efforts to furnish, on the period covered corresponds date that such Registrable Securities are delivered to a fiscal year the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion dated such date of the Company), an earnings statement of legal counsel representing the Company which will satisfy for the provisions purposes of Section 11(a) of the Securities Act.
(viii) Use its best efforts such registration, in cooperation with form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ixii) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from negative assurances letter”, dated such date of the independent public accountants legal counsel representing the Company for the Company purposes of such registration, in customary form and covering such matters of the type substance as is customarily covered by such letters as the Requesting Holders reasonably request given to underwriters in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering and (iii) a “comfort” letter dated such date from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters;
(k) in the event that the Registrable Securities covered by such registration statement are shares of Common Stock, use commercially reasonable efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock is then listed;
(l) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(m) in connection with a customary due diligence review, make available for inspection by the Purchaser, any underwriter participating in any such disposition of Registrable Securities., if any, and any counsel or accountants retained by the Purchaser or underwriter (collectively, the “Offering Persons”), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in customary due diligence sessions in each case reasonably requested by any such representative, underwriter, counsel or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Offering Persons unless (i) disclosure of such information is required by court or administrative order or in connection with an audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor, (ii) disclosure of such information, in the reasonable judgment of the Offering Persons, which shall include counsel, is required by law or applicable legal process (including in connection with the offer and sale of securities pursuant to the rules and regulations of the SEC), (iii) such information is or becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Offering Persons in violation of this Agreement or (iv) such information (A) was known to such Offering Persons (prior to its disclosure by the Company) from a source other than the Company when such source, to the knowledge of the Offering Persons, was not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information, (B) becomes available to the Offering Persons from a source other than the Company when such source, to the knowledge of the Offering Persons, is not bound by any contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information or (C) was developed independently by the Offering Persons or their respective representatives without the use of, or reliance on, information provided by the Company. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure (except in the case of (ii) above when a proposed disclosure was or is to be made in connection with a registration statement or prospectus under this Agreement and except in the case of clause (i) above when a proposed disclosure is in connection with a routine audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor);
(bn) Each holder cooperate with the Purchaser and each underwriter or agent participating in the disposition of Registrable Securities willand their respective counsel in connection with any filings required to be made with FINRA, including the use of commercially reasonable efforts to obtain FINRA’s pre-clearance or pre-approval of the registration statement and applicable prospectus upon filing with the SEC; and
(o) as promptly as is reasonably practicable notify the Purchaser (i) when the prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such registration statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or other federal or state governmental authority for amendments or supplements to such registration statement or related prospectus or to amend or to supplement such prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such registration statement or the initiation of any proceedings for such purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement contemplated by Section 2.1(f) above relating to any applicable offering cease to be true and correct or (v) 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. The Purchaser agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi2.1(f), forthwith discontinue 2.1(o)(ii) or 2.1(o)(iii), the Purchaser shall discontinue, and shall cause each Holder to discontinue, disposition of the any Registrable Securities pursuant to the covered by such registration statement covering such Registrable Securities or the related prospectus until such holder’s receipt of the copies of the supplemented or amended prospectus, which supplement or amendment shall, subject to the other applicable provisions of this Agreement, be prepared and furnished as soon as reasonably practicable, or until the Purchaser is advised in writing by the Company that the use of the applicable prospectus contemplated may be resumed, and have received copies of any amended or supplemented prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included reference in such registrationprospectus (such period during which disposition is discontinued being an “Interruption Period”) and, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under if requested by the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten OfferingCompany, the Company agrees, if so required by the managing underwriter, not Holders shall use commercially reasonable efforts to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish return to the Company all copies then in their possession of the prospectus covering such information Registrable Securities at the time of receipt of such request. As soon as practicable after the Company has determined that the use of the applicable prospectus may reasonably request from such holder concerning such holder be resumed, the Company will notify the Purchaser thereof. In the event the Company invokes an Interruption Period hereunder and its intended method in the reasonable discretion of distribution of Registrable Securities to enable the Company the need for the Company to include such information in continue the registration statement.
(g) It is understood that in Interruption Period ceases for any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary hereinreason, the Company shall not be required shall, as soon as reasonably practicable, provide written notice to include any Registrable Securities of any holder in the event Purchaser that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities ActInterruption Period is no longer applicable.
Appears in 2 contracts
Sources: Investor Rights Agreement (Plymouth Industrial REIT Inc.), Investment Agreement (Plymouth Industrial REIT Inc.)
Registration Procedures. In connection with the registration obligations of the Company under Sections 3 and 4, the Company shall:
(a) If prepare and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission SEC a registration statement Registration Statement with respect to such Registrable Securities on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of the Registrable Securities in accordance with the intended methods of distribution thereof, and use its reasonable best efforts to cause such registration statement Registration Statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(iib) Prepare prepare and file with the Commission such SEC amendments (including and post-effective amendments) amendments to such Registration Statement and such amendments and supplements to such registration statement and the prospectus Prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective for a period or as may be requested required by the Requesting Holders not exceeding nine rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder necessary to keep such Registration Statement effective (9i) months in the case of an Underwritten Offering, until each underwriter has completed the distribution of all securities purchased by it, and (ii) in the case of any other registration, until the Registrable Securities covered thereby cease to be Registrable Securities, and cause the Prospectus as so amended and supplemented to be filed pursuant to Rule 424 under the Securities Act, and otherwise use reasonable best efforts to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during Registration Statement until such period time as is specified in accordance with clause (i) or (ii) above, as the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.case may be;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, Holder of such Registrable Securities such number of copies of a prospectus such Registration Statement and preliminary prospectus for delivery in conformity with the requirements of the Securities Acteach amendment and post-effective amendment thereto, any Prospectus or Prospectus supplement and such other documents as such Person Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in Section 8(b)) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(ivd) Use its use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement Registration Statement under such other securities or blue sky laws of such jurisdictions as each seller Holder shall reasonably request, and to do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsHolder, except that the Company shall not be required for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv7(d), it is would not then be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause notify each Holder of any such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statementRegistration Statement, at any time when a prospectus Prospectus relating thereto is required to be delivered under the Securities Act within the appropriate applicable period mentioned referred to in Section 6.3(a)(ii7(b), if that the Company becomes has become aware that the prospectus Prospectus included in such registration statementRegistration Statement, as then in effect, includes an untrue statement of a the material fact or omits to state any 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; use its best efforts existing (the period during which the Holders are required in such case pursuant to Section 8(b) to refrain from effecting public sales or distributions of Registrable Securities being referred to as a "Section 7(e) Period"), and prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; andHolder, at the request of any such selleras soon as reasonably practicable, deliver a reasonable number of copies of an amended amendment to such Registration Statement or supplemental prospectus supplement to such related Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus Prospectus shall 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.;
(viif) Otherwise use its best efforts notify each Holder of Registrable Securities covered by such Registration Statement at any time,
(i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to comply with all applicable rules and regulations the Registration Statement or any post-effective amendment, when the Registration Statement or such post- effective amendment has become effective;
(ii) of the Commission and issuance by the SEC of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation of any proceedings for such purposes; and
(iii) of the receipt of the Company of any written notification of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose;
(g) make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), stockholders an earnings statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act., provided that the Company shall be deemed to have complied with this Section 7(g) if it has complied with Rule 158 under the Securities Act;
(viiih) Use its use reasonable best efforts in cooperation (i) to cause all Conversion Shares and Warrant Shares covered by such Registration Statement to be listed on any securities exchange or automated quotation system on which the Common Stock is then listed, if such Conversion Shares and Warrant Shares are not already so listed and if such listing is then permitted under the rules of such exchange or automated quotation system, (ii) to provide a transfer agent and registrar for Registrable Securities covered by such Registration Statement no later than the effective date of such Registration Statement and (iii) prepare and file with the underwritersSEC, within the time period specified by Section 12(g) of the Exchange Act, a Registration Statement on Form 8-A registering the Preferred Shares and the Warrants if any, such filing is required pursuant to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to Section 12(g) of the Company.Exchange Act;
(ixi) In if the event the offering is registration involves an Underwritten Offering, enter into a customary underwriting agreement and in connection therewith:
(i) make such representations and warranties to the underwriters in form, substance and scope as are customarily made by issuers to underwriters in comparable Underwritten Offerings;
(ii) use its reasonable best efforts to obtain a “opinions of counsel to the Company (in form, scope and substance reasonably satisfactory to the managing underwriters), addressed to the underwriters, and covering the matters customarily covered in opinions requested in comparable Underwritten Offerings;
(iii) use reasonable best efforts to obtain "cold comfort” letter " letters and bring-downs thereof from the Company's independent certified public accountants for addressed to the Company underwriters, such letters to be in customary form and covering such matters of the type customarily covered in "cold comfort" letters by such letters as the Requesting Holders reasonably request independent accountants in order to effect an connection with Underwritten Offering of such Registrable Securities.Offerings; and
(xiv) Execute deliver such documents and deliver all instruments and documents (including certificates as may be reasonably requested by the managing underwriters to evidence compliance with any customary conditions contained in an Underwritten Offering an the underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.agreement;
(bj) Each holder cooperate with the Holders of Registrable Securities willcovered by such Registration Statement and the managing underwriter or underwriters or agents, upon receipt if any, to facilitate the timely preparation and delivery of certificates (not bearing any notice from restrictive legends) representing the Company securities to be sold under such Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters or agents, if any, or such Holders may request;
(k) if reasonably requested by the managing underwriter or underwriters or a Holder of Registrable Securities being sold in connection with an Underwritten Offering, incorporate in a Prospectus supplement or post-effective amendment to the happening Registration Statement such information as the managing underwriters and the Holders of any event of the kind described a majority in Section 6.3(a)(vi), forthwith discontinue disposition number of the Registrable Securities pursuant being sold agree should be included therein relating to the registration statement covering plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the principal amount of Registrable Securities until being sold to such holder’s receipt underwriters, the purchase price being paid therefor by such underwriters and any other terms of the copies Underwritten Offering of the supplemented Registrable Securities to be sold in such offering and make all required filings of such Prospectus supplement or amended prospectus contemplated by Section 6.3(a)(vi).post-effective amendment as promptly as practicable upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(cl) If if reasonably requested by the managing underwriter or underwriters or a registration pursuant to Section 6.1 or 6.2 hereof involves Holder of Registrable Securities being sold in an Underwritten Offering, each holder cause appropriate representatives of the Company to participate in any "road shows" or similar marketing activities;
(m) in the event of the issuance of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in the Registration Statement for sale in any jurisdiction, use reasonable best efforts promptly to obtain the withdrawal of such registrationstop order or other order, not and the period for which the Registration Statement shall be kept effective shall be extended by a number of days equal to effect the number of days between the issuance and withdrawal of any public sale stop order or distributionother order (a "Section 7(l) Period"); and
(n) disclose in each Registration Statement that, including any sale pursuant to Rule 144 416 under the Securities Act, such Registration Statement shall register the offering of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative indeterminate number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything Common Stock which may become issuable pursuant to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision antidilution provisions of the Securities ActPreferred Shares and the Warrants.
Appears in 2 contracts
Sources: Registration Rights Agreement (Itc Deltacom Inc), Registration Rights Agreement (Itc Deltacom Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the In connection with any registration of any ----------------------- Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Article VI, the Company will, as expeditiously soon as possible---------- reasonably practicable:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such registration statement to become and remain effective; provided that, in effective until the case earlier of a registration provided for in Section 6.1 or 6.2 hereof, before filing a such time as all Registrable Securities subject to such registration statement have been disposed of or prospectus or the expiration of one hundred eighty (180) days; provided, however, that: -------- -------
(i) before the initial filing of any amendments or supplements theretoregistration statement, the Company will furnish to all Holders covered by such registration statement, their counsel, and the counsel selected by the Requesting Holders underwriters, if any, and their counsel, copies of all such documents proposed to be filedfiled at least ten (10) days prior thereto, which documents will be subject to the timely and reasonable review review, within such ten (10) day period, of such counselHolders, their counsel and the underwriters; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.and
(ii) Prepare before filing any prospectus or any amendments or supplements to any registration statement or prospectus, the Company will furnish to all Holders covered by such registration statement, their counsel, and the underwriters, if any, and their counsel, copies of all such documents proposed to be filed a reasonable period of time (in light of the nature of the amendments or changes contained therein, which shall in every event be at least one (1) day and shall never be required to be more than ten (10) days) prior thereto, which documents will be subject to the reasonable review, within such period, of such Holders, their counsel and the underwriters;
(b) prepare and file with the Commission such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Registrable Securities covered by such registration statement during until the earlier of such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, time as all of such Registrable Securities have been disposed of or the expiration of one hundred eighty (180) days (except with respect to registrations effected on Form S-3 or any successor form, as to which no such period shall apply);
(c) furnish to each Holder such number of copies of the registration statement and prospectus (including, without limitation, a prospectus and preliminary prospectus for delivery prospectus) in conformity with the requirements of the Securities ActAct (in each case including all exhibits) and each amendment or supplement thereto, and together with such other documents as such Person any Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(ivd) Use use its commercially reasonable best efforts to register or to qualify such the Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as each seller shall Holder reasonably requestrequests, and do any and all such other acts and things which as may be reasonably necessary or advisable required of it to enable such seller Holder to consummate the disposition in such jurisdiction of the Registrable Securities owned securities covered by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.registration statement;
(ve) Use otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securities holders, as soon as practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first month after the effective date of such registration statement, which earnings statement will satisfy the provisions of Section 11
(a) of the Securities Act;
(f) provide and cause such to be maintained a transfer agent and registrar for Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement;
(g) if requested by the underwriters for any underwritten offering or Registrable Securities on behalf of a Holder pursuant to be registered or qualified a registration requested under Section 6.01, then (i) the Company will enter into an ------------ underwriting agreement with or approved such underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other governmental agencies or authorities (terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, state securities commissionsprovisions with respect to indemnities and contribution as are reasonably satisfactory to such underwriters and the Holders; (ii) as may the Holders on whose behalf Registrable Securities are to be necessary distributed by such underwriters will be parties to enable any such underwriting agreement and (iii) the seller or sellers thereof representations and warranties by, and the other agreements on the part of, the Company to consummate and for the disposition benefit of such underwriters, will also be made to and for the benefit of such Holders; and no Holder will be required by the Company to make any representations or warranties to or agreements with the Company or the underwriters other than reasonable and customary representations, warranties or agreements regarding such Holder, such Holder's Registrable Securities, subjectsuch Holder's intended method or methods of disposition, howeverand any other representation required by law;
(h) furnish, at the written request of any Holder, on the date that such Registrable Securities are delivered to the limitations set forth underwriters for sale pursuant to such registration, or, if such Registrable Securities are not being sold through underwriters, on the date that the registration statement with respect to such Registrable Securities becomes effective, (i) an opinion, in clauses form and substance reasonably satisfactory to such Holders and addressing matters customarily addressed in underwritten public offerings, of the counsel representing the Company for the purposes of such registration (Awho will not be an employee of the Company and who will be satisfactory to such Holders), (B) which opinion will be addressed to the underwriters, if any, and to the selling Holders; and (Cii) a letter (the "Comfort Letter"), in form -------------- and substance reasonably satisfactory to such Holders, from the independent certified public accountants of Section 6.3(a)(iv) hereof.the Company, addressed to the underwriters, if any, and to the selling Holders making such request (and, if such accountants refuse to deliver the Comfort Letter to such Holders, then the Comfort Letter will be addressed to the Company and accompanied by a letter from such accountants addressed to such Holders stating that they may rely on the Comfort Letter addressed to the Company); and
(vii) Immediately notify each seller of Registrable Securities covered by such during the period when the registration statement, at any time when a prospectus relating thereto statement is required to be delivered under effective, notify each selling Holder of the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that happening of any event as a result of which the prospectus included in such the registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to misleading, and prepare and file an appropriate a supplement or amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall will not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading in misleading. It will be a condition precedent to the light of the circumstances then existing.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement obligation of the Company which will satisfy the provisions of Section 11(a) to take any action pursuant to this Article VI in respect of the Registrable Securities Act.
(viii) Use its best efforts ---------- that are to be registered at the request of any Holder that such Holder furnish to the Company such information regarding the Registrable Securities held by such Holder and the intended method of disposition thereof as is legally required in cooperation connection with the action taken by the Company. The managing underwriter or underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the for any offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt to be registered pursuant to Section 6.01 or 6.03 will be selected by the ------------ ---- Holders of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition a majority of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi)being so registered.
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Securities Exchange and Purchase Agreement (Fresh America Corp), Securities Exchange and Purchase Agreement (Fresh America Corp)
Registration Procedures. (a) If and whenever the Company is ----------------------- required to use its best efforts by the provisions of this Agreement to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possibleSecurities:
(ia) Prepare andThe Company will use commercially reasonable efforts to prepare and file with the SEC, in any event within sixty the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (60) calendar days after the end of the period within which requests for or on such other registration may be given form available to the Company (or within ninety (90) days after that permits the end greatest extent of such period if such period ends during the first month or the last month incorporation by reference of materials filed by the Company’s fiscal year), file with under the Commission a registration statement with respect to such Registrable Securities Exchange Act) and will use its best commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable thereafter and to remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 180 days after such Registration Statement becomes effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected registrations pursuant to Section 6.2 at 2, or (2) 90 days after such Registration Statement becomes effective, in the case of registrations pursuant to Section 3, in every case as any time prior such period may be extended pursuant to the effective date of the registration statement relating theretosubsection (h) or Section 8.
(iib) Prepare The Company will prepare and file with the Commission SEC such amendments, post- effective amendments (including post-effective amendments) and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a such period of time required by subsection (a), as such period may be requested by the Requesting Holders not exceeding nine extended pursuant to subsection (9h) months and to or Section 8.
(c) The Company will comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Registration Statement during the period during which any such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statementRegistration Statement is required to be effective.
(iiid) Furnish The Company will furnish to each holder any Holder and any underwriter of Registrable Securities covered by the registration statement (1) such number of copies (including manually executed and to each underwriter, if any, conformed copies) of such Registrable Securities Registration Statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (2) such number of copies of a the prospectus used in connection with such Registration Statement (including each preliminary prospectus, any summary prospectus and preliminary the final prospectus for delivery in conformity with the requirements of the Securities Actand including prospectus supplements), and (3) such number of copies of other documents documents, in each case as the Holder or such Person underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securitiesrequest.
(ive) Use its best The Company will use commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities or "blue sky sky" laws of such jurisdictions states of the United States and any other jurisdiction as each seller any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably necessary requested by such Holder or advisable to enable such seller underwriter to consummate the offering and disposition of the Registrable Securities owned by such seller in such jurisdictions, except that ; but the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), wherein it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(vf) Use its best The Company will use, as soon as practicable after the effectiveness of the Registration Statement, commercially reasonable efforts to cause such the Registrable Securities covered by such registration statement Registration Statement to be registered or qualified with with, or approved by by, such other United States and Cayman Islands public, governmental agencies or authorities (includingregulatory authorities, without limitationif any, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate required in connection with the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vig) Immediately notify each seller of The Company will use commercially reasonable efforts to list the Registrable Securities covered by such registration statementRegistration Statement on any securities exchange (or if applicable, at the Nasdaq National Market System) on which any time securities of the Company are then listed, if the listing of such Registrable Securities is then permitted under the applicable rules of such exchange (or if applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable and, if requested by any Holder, confirm such notification in writing, (1) when a prospectus relating or any prospectus supplement has been filed with the SEC, and when a Registration Statement or any post-effective amendment thereto is required has been filed with and declared effective by the SEC, (2) of the issuance by the SEC of any stop order or the coming to be delivered under its knowledge of the Securities Act within initiation of any proceedings for that purpose, (3) of the appropriate period mentioned in Section 6.3(a)(ii), if receipt by the Company becomes aware of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (4) of the occurrence of any event which requires the making of any changes to a Registration Statement or related prospectus so that the prospectus included in such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existing; use its best efforts to under which they were made, not misleading (and the Company shall promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver each Holder a reasonable number of copies of an a supplemented or amended or supplemental prospectus as may be necessary so such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 therein, in the light of the circumstances then existing.
under which they are made, not misleading), and (vii5) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement 's determination that the filing of a post-effective amendment to a Registration Statement is necessary or appropriate. Upon the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 6.3(a)(viclause (4), the Holders shall forthwith discontinue any offer and disposition of the Registrable Securities pursuant to the registration statement Registration Statement covering such Registrable Securities until such holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreeswhich is no longer defective and, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such information as Registrable Securities which are then in the Holders' possession. If the Company may shall provide any notice of the type referred to in the preceding sentence, the period during which the Registration Statement is required by subsection (a) to be effective shall be extended by the number of days from and including the date such notice is provided, to and including the date when the Holders shall have received copies of the corrected prospectus.
(i) The Company will enter into such agreements and take such other appropriate actions as are customary and reasonably request from necessary to expedite or facilitate the disposition of such holder concerning such holder and its intended method of distribution of Registrable Securities (including, without limitation, making its management available to enable the Company extent reasonably requested by the Holders to include participate in marketing presentations to potential investors in connection with any underwritten offering), and in that regard, will deliver to the Holders such information documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement, including, in the case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement.
(g) It is understood that , or if such letter can not be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company's financial statements included or incorporated by reference in any Underwritten Offering in addition the registration statement at the highest level permitted to any shares of stock (be given by such accountants under the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) then applicable standards of the initial shares (or American Institute of Certified Public Accountants with respect to such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationRegistration Statement.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Scottish Annuity & Life Holdings LTD), Registration Rights Agreement (Scottish Annuity & Life Holdings LTD)
Registration Procedures. (a) If In connection with each Registration, and whenever in accordance with the Company is required to use its best efforts to effect intended method or cause methods of distribution of the registration of any Registrable Securities under the Securities Act Registered Shares as provided described in Section 6.1 or 6.2 hereofsuch Registration, the Company willshall, as expeditiously soon as possible:reasonably practicable (and, in any event, subject to the terms of this Agreement, including, without limitation, Section 3.01(a), at or before the time required by applicable laws and regulations):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission as provided herein a registration statement with respect to such Registrable Securities Registered Shares on a registration form appropriate for such registration and use its reasonable best efforts to cause such registration statement to become and remain effectiveeffective promptly; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, PROVIDED that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by Stockholder and the Requesting Holders managing underwriter or underwriters (if the Demand Registration pertains to an underwritten offering) draft copies of all such documents proposed to be filedfiled at least three days prior to such filing, which documents will be subject to the timely and reasonable review of such counsel; the Stockholder, the managing underwriter or underwriters (if the Demand Registration pertains to an underwritten offering), and provided, further, their respective agents and representatives. In the event that the Company may discontinue proposes to include in any registration of its securities that is being effected pursuant to Section 6.2 at any time prior Registration information concerning or relating to the effective date Stockholder to which the Stockholder shall reasonably object, the Company and the Stockholder shall cause their respective senior executives to discuss the Stockholder's objection and to negotiate in good faith an appropriate resolution of such objection. The Company shall not be deemed to be in breach of the registration statement relating theretosecond sentence of Section 3.01(a) as the result of the parties' failure to conclude such discussions during the 60 day period referred to therein.
(ii) Prepare upon request by the Stockholder, furnish without charge to the Stockholder and the managing underwriter or underwriters, if any, thereof, a reasonable number of copies of the Registration and each amendment and supplement thereto (in each case including all exhibits thereto), each prospectus included in such Registration (including each preliminary prospectus) and any amendments or supplements thereto and any documents incorporated therein by reference;
(iii) use its reasonable best efforts to keep such Registration effective for at least 90 days (the "EFFECTIVE PERIOD"); prepare and file with the Commission such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement the Registration and the prospectus used in connection therewith as may be necessary to keep such registration statement effective maintain the effectiveness of the Registration for a period as the Effective Period and to cause the prospectus (and any amendments or supplements thereto) to be filed pursuant to Rules 424 and 430A under the Securities Act and/or any successor rules that may be requested adopted by the Requesting Holders not exceeding nine (9) months Commission, as such rules may be amended from time to time; and to comply with the provisions of the Securities Act with respect to the disposition of all securities Registered Shares covered by such registration statement Registration during such the applicable period in accordance with the intended method or methods of disposition distribution thereof, as specified in writing by the seller Stockholder;
(iv) make available for inspection by the Stockholder or sellers thereof set forth by any underwriter, attorney, accountant or other agent retained by the Stockholder (collectively, the "INSPECTORS"), upon reasonable request during normal business hours, financial and other records and pertinent corporate documents of the Company, provide the Inspectors with opportunities to discuss the business of the Company with its officers, and provide opportunities to discuss the business of the Company with the independent public accountants who have certified its most recent annual financial statements, in each case to the extent but only to the extent reasonably necessary to enable the Stockholder or any underwriter retained by the Stockholder to conduct a "reasonable investigation" for purposes of Section 11(a) of the Securities Act. The Stockholder agrees, and the Stockholder shall cause each Inspector to agree, that records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Stockholder or any Inspector, or used by the Stockholder or an Inspector for a purpose other than as described in the preceding sentence unless (1) the disclosure of such records is necessary to avoid or correct a misstatement of a material fact or omission to state a material fact in the Registration, (2) the disclosure of such records is required by any court or governmental body with jurisdiction over the Stockholder or such Inspector, or (3) all of the information contained in such registration statement.records has been made generally available to the public without any fault on the part of the Inspector. The Stockholder agrees that it will, upon learning that disclosure of such records is sought in a court of competent jurisdiction or by any governmental body, promptly give prior notice to the Company and allow the Company, at its expense, to undertake appropriate action (and the Stockholder shall cooperate with and assist the Company as requested in taking such action) to prevent disclosure of those records deemed confidential;
(iiiv) Furnish to each holder of Registrable Securities covered by promptly notify the registration statement Stockholder and to each underwriterthe managing underwriter or underwriters, if any, thereof, after becoming aware thereof, (1) when the Registration or any related prospectus or any amendment or supplement has been filed, and, with respect to the Registration or any post-effective amendment, when the same has become effective, (2) of such Registrable Securities such number of copies of a any request by the Commission for amendments or supplements to the Registration or the related prospectus and preliminary prospectus or for delivery in conformity with the requirements additional information, (3) of the Securities Act, and such other documents as such Person may reasonably request in issuance by the Commission of any stop order to facilitate suspending the public sale or other disposition effectiveness of the Registrable Securities.
Registration or the initiation of any proceedings for that purpose, (iv4) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned receipt by such seller in such jurisdictions, except that the Company shall not of any notification with respect to the suspension of the qualification of the Registered Shares for any such purpose be required (A) to qualify to do business as a foreign corporation sale in any jurisdiction where, but or the initiation of any proceeding for the requirements of this Section 6.3(a)(iv), it is not then so qualifiedsuch purpose, or (B) to subject itself to taxation after becoming aware thereof, within the Effective Period, of the happening of any event which makes any statement in the Registration or any post-effective amendment thereto, prospectus or any amendment or supplement thereto, or any document incorporated therein by reference untrue in any such jurisdiction, material respect or (C) to take which requires the making of any action which would subject it to general changes in the Registration or unlimited service of process in post-effective amendment thereto or prospectus or amendment or supplement thereto so that they will not contain any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading (in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request case of any such sellerprospectus, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.under which they were made) not misleading;
(vi) during the Effective Period, use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration or any post-effective amendment thereto;
(vii) Otherwise use its reasonable best efforts to comply with all applicable rules register or qualify the Registered Shares for offer and regulations sale under such securities or "blue sky" laws of such states or other U.S. jurisdictions as the Commission Stockholder and make generally available the managing underwriter or underwriters, if any, thereof shall reasonably request in writing; PROVIDED that the Company shall not be required for any such purpose to its security holders, (1) qualify as a foreign corporation in each case as soon as practicable, any jurisdiction where it would not otherwise be required to qualify but not later than ninety (90) calendar days after for the close requirements of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Companythis Section 3.04(a)(vii), an earnings statement or (2) consent to general service of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.process in any such jurisdiction;
(viii) Use use its reasonable best efforts in cooperation to cause the Registered Shares to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary by virtue of the markets on which the Registered Shares are listed or quoted to enable the Stockholder to consummate the disposition of such Registered Shares;
(ix) cooperate with the Stockholder and the managing underwriter or underwriters, if any, to list facilitate the timely preparation and delivery of certificates representing such Registrable Securities on each securities exchange as they may reasonably designateRegistered Shares to be sold, which securities exchanges certificates shall not bear any restrictive legends except as required by law; and enable such Registered Shares to be acceptable in such denominations and registered in such names as the managing underwriter or underwriters may request in writing at least two business days prior to any sale of the Registered Shares to the Company.underwriters;
(ixx) In the event enter into such agreements (including, if the offering is an Underwritten Offeringunderwritten offering, use its best efforts an underwriting agreement) containing such provisions as are customary in transactions of such kind and are not materially inconsistent with the terms of this Agreement, and take such other actions as are reasonably necessary in connection therewith in order to expedite or facilitate the disposition of such Registered Shares; and (1) obtain a “cold comfort” letter from an opinion or opinions of legal counsel to the independent public accountants Company (which counsel may be internal counsel for the Company unless the managing underwriter or underwriters shall otherwise reasonably request) in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order opinions, addressed to effect an Underwritten Offering of such Registrable Securities.
(x) Execute managing underwriter or underwriters, if any, and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of Stockholder and dated the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) closing of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis sale of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.Registered Shares relating thereto; and
Appears in 2 contracts
Sources: Investor Agreement (Veeco Instruments Inc), Investor Agreement (Fei Co)
Registration Procedures. (a) If If, and whenever in each case when, the Company is required to use its best efforts to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in this Section 6.1 or 6.2 hereof3, the Company will, as expeditiously as possibleshall promptly:
(ia) Prepare prepare and, in any event within sixty 45 days (6030 days in the case of a Form S-3 registration) calendar days after the end of the period under Section 3.2.1(a) within which requests a piggyback request for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date within 90 days of the registration statement relating thereto.initial filing;
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested not in excess of 270 days (or such shorter period which will terminate when all Registrable Securities covered by the Requesting Holders not exceeding nine (9such registration statement have been sold) months and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.; provided that before filing a registration statement or prospectus, or any amendments or supplements thereto in accordance with Sections 3.1 or 3.2, the Company will furnish to counsel selected pursuant to Section 3.3.3 hereof copies of all documents proposed to be filed and will afford such counsel a reasonable opportunity to review, and provide comments with respect to, such documents;
(iiic) Furnish furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, seller of such Registrable Securities such number of copies of a such registration statement and of each amendment and supplement thereto (in each case including all exhibits filed therewith), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and preliminary prospectus for delivery summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities by such seller;
(ivd) Use use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of in such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(ivclause (d), it is would not then be obligated to be so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(ve) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of any such Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes Company’s becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any 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; use its best efforts to prepare , and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver prepare and furnish to such seller a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.;
(viif) Otherwise otherwise use its best efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holders, in each case as soon as practicable, reasonably practicable (but not later more than ninety (9018 months) calendar days after the close effective date of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company)registration statement, an earnings statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act.;
(viiig) Use (i) if such Registrable Securities are Common Stock (including Common Stock issuable upon conversion, exchange or exercise of another security), use its best efforts to list such Registrable Securities on any securities exchange on which the Common Stock is then listed if such Registrable Securities are not already so listed; and (ii) use its best efforts to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(h) enter into such customary agreements (including an underwriting agreement in cooperation with customary form), which may include indemnification provisions in favor of underwriters and other Persons in addition to the provisions of Section 3.4 hereof, and take such other actions as the Principal Participating Holders or the underwriters, if any, reasonably requested in order to list expedite or facilitate the disposition of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.Securities;
(ixi) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter or letters from the Company’s independent public accountants in customary form and covering matters of the type customarily covered by “cold comfort” letters as the Principal Participating Holders shall reasonably request;
(j) make available for inspection by any seller of such Registrable Securities covered by such registration statement, by any managing underwriter or underwriters participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by any such seller or any such managing underwriter(s), all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement (subject to each party referred to in this clause (j) entering into customary confidentiality agreements in a form reasonably acceptable to the Company);
(k) notify counsel (selected pursuant to Section 3.3.3 hereof) for the Holders of Registrable Securities included in such registration statement and the managing underwriter or agent, immediately, and confirm the notice in writing (i) when the registration statement, or any post-effective amendment to the registration statement, shall have become effective, or any supplement to the prospectus or any amendment to the prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the registration statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(l) use its best efforts to prevent the issuance of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order as soon as practicable;
(m) if requested by the managing underwriter or agent or any Holder of Registrable Securities covered by the registration statement, incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such Holder reasonably requests to be included therein, including, with respect to the number of Registrable Securities being sold by such Holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
(n) cooperate with the Holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or agent, if any, or such Holders may request;
(o) obtain for delivery to the Holders of Registrable Securities being registered and to the underwriter or agent an opinion or opinions from counsel for the Company in customary form and covering in form, substance and scope reasonably satisfactory to such matters Holders, underwriters or agents and their counsel;
(p) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering disposition of such Registrable Securities.Securities and their respective counsel in connection with any filings required to be made with the FINRA; and
(xq) Execute use its best efforts to make available the executive officers of the Company to participate with the Holders of Registrable Securities and deliver all instruments and documents (including any underwriters in an Underwritten Offering an underwriting agreement any “road shows” that may be reasonably requested by the Holders in customary form) and take such other actions and obtain such certificates and opinions as connection with distribution of the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Michaels Companies, Inc.), Registration Rights Agreement (Michaels Companies, Inc.)
Registration Procedures. (a) If and whenever the Company is required ----------------------- to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofsections 2.1 and 2.2, the Company willshall, as expeditiously as possible:
(i) Prepare andprepare and (in the case of a registration pursuant to section 2.1, such filing to be made within 45 days after the initial request of one or more Initiating B-2 Holders or in any event within sixty (60as soon thereafter as possible) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a the requisite registration statement with respect to effect such Registrable registration (including such audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and thereafter use its best efforts to cause such registration statement to become and remain effective; , provided that-------- however that the Company may discontinue any registration of its securities which are not Registrable Securities (and, under the circumstances specified in section 2.2(a), its securities which are Registrable Securities) at any time prior to the case effective date of a the registration statement relating thereto, provided for in Section 6.1 or 6.2 hereof, further that before filing a such -------- registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders holders of Registrable Securities which are to be included in such registration copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review review, but not the prior approval, of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or (i) in the case of a registration pursuant to section 2.1, the expiration of 180 days after such registration statement becomes effective, or (ii) in the case of a registration pursuant to section 2.2, the expiration of 90 days after such registration statement becomes effective;
(iii) Furnish furnish to each holder seller of Registrable Securities covered by the such registration statement and to each underwriter, if any, of the securities being sold by such Registrable Securities seller 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 a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.request;
(iv) Use use its best efforts to register or qualify such all Registrable Securities and other securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each any seller thereof and any underwriter of the securities being sold by such seller shall reasonably request, to keep such registrations or qualifications in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then subdivision (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use use its best efforts to cause such all Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vi) Immediately notify furnish to each seller of Registrable Securities covered by such registration statementa signed counterpart, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement addressed to such prospectus seller and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.of:
Appears in 2 contracts
Sources: Quarterly Report, Preferred Stock Purchase Agreement (United Rentals Inc /De)
Registration Procedures. (a) If and whenever the Company is required to use its best commercially reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act or an Underwritten Offering as provided in Section 6.1 or 6.2 hereof4.1, Section 4.2 and Section 4.3, the Company willshall as promptly as practicable (in each case, as expeditiously as possible:to the extent applicable):
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to effect such Registrable Securities registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use its best commercially reasonable efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish effective pursuant to the counsel selected by the Requesting Holders copies terms of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counselthis Agreement; and provided, furtherhowever, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto.; provided, further that before filing such registration statement or any amendments thereto, the Company will (A) furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, (B) provide each such Selling Holder and their counsel the opportunity to object to any information pertaining to such Selling Holder or its plan of distribution that is contained in the registration statement (it being understood that each Selling Holder and counsel to such Selling Holder will conduct their review and provide any comments promptly) and (C) make any changes reasonably requested by such Selling Holder or their counsel with respect to such information;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements and “stickers” to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until the earlier of such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Selling Holder(s) set forth in such registration statement.statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 90 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 90 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
(iii) Furnish furnish to each holder of Registrable Securities covered by the registration statement Selling Holder and to each underwriter, if any, of the securities being sold by such Registrable Securities Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits or documents incorporated by reference therein), such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Person Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Selling Holder;
(iv) Use its best use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as each seller any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsSelling Holder, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then clause (iv) be obligated to be so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) to take any action which would subject it file a general consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the NASDAQ or the New York Stock Exchange;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, subjectobtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the limitations set forth in clauses registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) either (A), ) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (Ci) of Section 6.3(a)(ivor (ii) hereof.
(vi) Immediately notify each seller such holder of Registrable Securities covered by requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission or any other Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission or any other Governmental Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon discovery that, or upon the appropriate period mentioned in Section 6.3(a)(ii)happening of any event as a result of which, if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such seller, deliver Selling Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading;
(xi) use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;
(xiv) cooperate with any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the light offering, marketing or selling of the circumstances then existing.Registrable Securities;
(viixvi) Otherwise have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company Securities;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA;
(xx) otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after all reporting requirements under the close rules and regulations of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Exchange Act.; and
(viiixxii) Use its use reasonable best efforts to take any action requested by the Selling Holders, including any action described in cooperation with the underwritersclauses (i) through (xxi) above to prepare for and facilitate any “over-night deal,” Block Trade Offering or other proposed sale of Registrable Securities over a limited timeframe. The Company may require each Selling Holder and each underwriter, if any, to list furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of may from time to time reasonably request to complete or amend the type customarily covered information required by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securitiesregistration statement.
(b) Each holder Without limiting any of the foregoing, in the event that the offering of Registrable Securities willis to be made by or through an underwriter, upon receipt of any notice from the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the happening Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. No Selling Holder shall be required to make any event of representations, warranties, indemnities or agreements with the kind described in Section 6.3(a)(vi)Company or the underwriters other than the representations, forthwith discontinue disposition warranties, indemnities and agreements regarding such Selling Holder, its ownership of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt being registered on its behalf, its intended method of the copies of the supplemented or amended prospectus contemplated distribution and any other representations, warranties, indemnities and agreements required by Section 6.3(a)(vi)law.
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder In connection with any offering of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale registered pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offeringthis Agreement, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as underwriter, if any (or, if no underwriter, the Company may reasonably request from such holder concerning such holder and its intended method Selling Holder), unlegended certificates representing ownership of distribution of the Registrable Securities to enable the Company to include such information in the registration statement.
being sold (g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed orunless, in the absence of agreementCompany’s sole discretion, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested are to be included issued in such registration.
(h) Notwithstanding anything uncertificated form pursuant to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.customary arrangements for issuing share
Appears in 2 contracts
Sources: Shareholders Agreement (New Fortress Energy LLC), Shareholder Agreement (New Fortress Energy LLC)
Registration Procedures. (a) If and whenever Whenever the Stockholders have requested that any Registrable Securities be registered pursuant to this Agreement (whether pursuant to Demand Registration or Piggyback Registration), the Company is required (subject to its right to withdraw such registration as contemplated by Section 2.2(d) hereof) shall use its best efforts to effect or cause the registration and the sale of any such Registrable Securities under in accordance with the Securities Act as provided intended method of distribution thereof and, in Section 6.1 or 6.2 hereofconnection therewith, the Company will, shall as expeditiously as possible, and, in any event, within sixty (60) days of receipt of such request:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities on any form for which the Company then qualifies and is available for the sale of Registrable Securities to be registered thereunder in accordance with the intended method of distribution and use its reasonable best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date within one hundred twenty (120) days of the registration statement relating thereto.date thereof;
(ii) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a continuous period as may be requested by of not less than one hundred eighty (180) days (or, if earlier, until all Registrable Securities included in such registration statement have been sold thereunder in accordance with the Requesting Holders not exceeding nine (9method of distribution set forth therein) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such registration statement.statement (including, without limitation, by incorporating in a prospectus supplement or post-effective amendment, at the request of a seller of Registrable Securities, the terms of the sale of such Registrable Securities);
(iii) Furnish before filing with the Commission any such registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to counsel selected by the Demanding Holders of a majority of the Registrable Securities held by the Demanding Holders, counsel for the underwriter or sales or placement agent, if any, and any other counsel for holders of Registrable Securities, if any, in connection therewith, drafts of all such documents proposed to be filed and provide such counsel with a reasonable opportunity for review thereof and comment thereon, such review to be conducted and such comments to be delivered with reasonable promptness;
(iv) promptly (i) notify each holder seller of Registrable Securities covered by of each of (x) the filing and effectiveness of the registration statement and prospectus and any amendment or supplements thereto, (y) the receipt of any comments from the Commission or any state securities law authorities or any other governmental authorities with respect to any such registration statement or prospectus or any amendments or supplements thereto, and (z) any oral or written stop order with respect to such registration, any suspension of the registration or qualification of the sale of such Registrable Securities in any jurisdiction or any initiation or threat of any proceedings with respect to any of the foregoing and (ii) use its reasonable best efforts to obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
(v) furnish to each underwriterseller of Registrable Securities, the underwriters and the sales or placement agent, if any, and counsel for each of the foregoing, a conformed copy of such Registrable Securities registration statement and each amendment and supplement thereto (in each case, including all exhibits thereto and documents incorporated by reference therein) and such additional number of copies of a such registration statement, each amendment and supplement thereto (in such case without such exhibits and documents), the prospectus (including each preliminary prospectus) included in such registration statement and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, supplements and all exhibits thereto and documents incorporated by reference therein and such other documents as such Person seller, underwriter, agent or counsel may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by each such seller;
(ivvi) Use if requested by the managing underwriter or underwriters of any registration or by the Demanding Holders of a majority of the Registrable Securities held by the Demanding Holders, subject to approval of counsel to the Company in its reasonable judgment, promptly incorporate in a prospectus, supplement or post-effective amendment to the registration statement such information concerning underwriters and the plan of distribution of the Registrable Securities as such managing underwriter or underwriters or such holders shall reasonably furnish to the Company in writing and request be included therein, including, without limitation, with respect to the number of Registrable Securities being sold by such holders to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus, supplement or post-effective amendment as soon as possible after being notified of the matters to be incorporated in such prospectus, supplement or post-effective amendment;
(vii) use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or “blue sky sky” laws of such jurisdictions as each seller shall the holders of a majority of Registrable Securities sought to be registered reasonably request, request and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller the holders of a majority of Registrable Securities sought to be registered to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller holders and keep such registration or qualification in such jurisdictions, except effect for so long as the registration statement remains effective under the Securities Act (provided that the Company shall not for any such purpose be required to (Ax) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(iv)paragraph, it is not then so qualified, or (By) to subject itself to taxation in any such jurisdiction, jurisdiction where it would not otherwise be subject to taxation but for this paragraph or (Cz) consent to take any action which would subject it to the general or unlimited service of process in any such jurisdiction where it is would not then so subject.otherwise be subject to general service of process but for this paragraph);
(vviii) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the notify each seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, upon the appropriate period mentioned in Section 6.3(a)(ii)discovery that, if or of the Company becomes aware that happening of any event as a result of which, the prospectus included in registration statement covering such registration statementRegistrable Securities, as then in effect, includes contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading misleading, and promptly prepare and furnish to each such seller a supplement or amendment to the prospectus contained in light of the circumstances then existing; use its best efforts to such registration statement (and prepare and file an appropriate and cause to become effective a post-effective amendment or supplement to such registration statement) so that such registration statement shall not, and such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable SecuritiesSecurities shall not, such prospectus shall not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or any fact necessary to make the statements therein not misleading misleading;
(ix) cause all such Registrable Securities to be listed on the New York Stock Exchange, Nasdaq Stock Market and/or any other national securities exchange and included in each established over-the-counter market on which or through which similar securities of the Company are listed or traded and, if not so listed or traded, to be listed on the NASD automated quotation system (“Nasdaq”) and, if listed on Nasdaq, use its reasonable efforts to secure designation of all such Registrable Securities covered by such registration statement as a”national market system security” within the meaning of Regulation NMS under the Exchange Act, or, failing that, to secure Nasdaq authorization for such Registrable Securities;
(x) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees, attorneys and independent accountants to supply all information reasonably requested by any such sellers, underwriters, attorneys, accountants or agents in connection with such registration statement. Information which the Company determines, in good faith, to be confidential shall not be disclosed by such persons unless (x) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or as otherwise required to be disclosed pursuant to the Securities Act and the rules promulgated thereunder, or (y) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each seller of Registrable Securities agrees, on its own behalf and on behalf of all its underwriters, accountants, attorneys and agents, that the information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the light securities of the circumstances then existing.Company unless and until such is made generally available to the public. Each seller of Registrable Securities further agrees, on its own behalf and on behalf of all its underwriters, accountants, attorneys and agents, that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential;
(viixi) Otherwise use its best efforts to comply with all applicable laws related to such registration statement and offering and sale of securities and all applicable rules and regulations of governmental authorities in connection therewith (including, without limitation, the Commission Securities Act and the Exchange Act) and make generally available to its security holders, in each case holders as soon as practicable, practicable (but in any event not later than ninety fifteen (9015) calendar days months after the close effectiveness of the period covered thereby (one hundred eighty (180such registration statement) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of and its subsidiaries complying with Section 11(a) of the Securities Act;
(xii) permit any Stockholder, which Stockholder, in its sole and exclusive judgment, might be deemed to be an underwriter or controlling person of the Company, to participate in the preparation of such registration statement and to require the insertion therein of material furnished to the Company in writing, which in the reasonable judgment of such holder and such holder’s counsel should be included;
(xiii) in the case of an underwritten offering, use reasonable best efforts to furnish to each seller of Registrable Securities and each underwriter of such offering a signed counterpart of (x) an opinion of counsel for the Company and (y) a comfort letter signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, covering such matters with respect to such registration statement and, in the case of the accountants’ comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to the underwriters in underwritten public offerings of securities for the account of, or on behalf of, an issuer of common stock, such opinion and comfort letters to be dated the date such opinions and comfort letters are customarily dated in such transactions, and covering in the case of such legal opinion, such other legal matters and, in the case of such comfort letter, such other financial matters, as are customarily covered by such legal opinions and comfort letters;
(xiv) not permit any officer, manager, underwriter, broker or any other person acting on behalf of the Company to use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Securities, without the prior written consent of a majority of Stockholders of Registrable Securities covered in any such registration statement and any underwriter; and
(xv) use reasonable best efforts to have officers of the Company participate in “road shows” for any Demand Registration and analyst or investor presentations and such other selling or informational activities as are customary for transactions similar to the planned disposition of securities requested by the Demanding Holders or the managing underwriter for such offerings.
(viiixvi) Use its best efforts in cooperation with take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering expedite or facilitate the disposition of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (JGWPT Holdings Inc.), Registration Rights Agreement (JLL JGW Distribution, LLC)
Registration Procedures. (a) If and whenever In the case of the registration, qualification or compliance effected by the Company is required pursuant to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, the Company will, upon reasonable request, inform each Holder as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end status of such period if such period ends during the first month or the last month of the Company’s fiscal year)registration, file with the Commission a registration statement with respect to such Registrable Securities qualification and use compliance. At its best efforts to cause such registration statement to become and remain effective; provided thatexpense, in the case of a registration provided for Registration Statement filed pursuant to Section 2.1 or Section 2.2, the Company will, during such time as any Holder holds Registrable Securities:
2.4.1. use commercially reasonable efforts to cause such Registration Statement to become effective and to prepare and file such amendments and post-effective amendments to the Registration Statement and any documents required to be incorporated by reference therein as may be necessary to keep the applicable Registration Statement filed and declared effective pursuant to this Agreement, and any related qualification or compliance under state securities laws which it is necessary to obtain, effective until the earliest of (A) the date upon which all Registrable Securities cease to be Registrable Securities and (B) the date upon which the Holders have completed the distribution described in Section 6.1 or 6.2 hereofsuch Registration Statement, before whichever first occurs (the period of time during which the Company is required hereunder to keep the Registration Statement effective is referred to herein as the “Registration Period”).
2.4.2. at least five (5) Business Days prior to filing a registration statement or Registration Statement and at least three (3) Business Days prior to the filing of a prospectus or any amendments or supplements theretoto a Registration Statement or a prospectus (but not any periodic report to be incorporated by reference in a Registration Statement or a prospectus), the Company will shall furnish to the counsel selected Holders of the Registrable Securities covered by such Registration Statement and the Requesting Holders underwriter or underwriters, if any, copies of or drafts of all such documents proposed to be filed, which documents will shall be subject to the timely and reasonable review of such counsel; Holders and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriterunderwriters, if any, and the Company shall use commercially reasonable efforts to satisfy any objections with respect thereto raised by the Selling Holders, or the underwriters, if any;
2.4.3. in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such Registrable Securities offering;
2.4.4. furnish such number of copies of a prospectus prospectuses and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents incident thereto as such Person any Holder from time to time may reasonably request in order to facilitate enable such Holder to consummate the public sale or other disposition of the Registrable Securities.Securities owned by such Holder;
(iv) Use its best 2.4.5. use commercially reasonable efforts to timely register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall any Holder reasonably request, requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition of the Registrable Securities owned by such seller Holder in such jurisdictions; provided, except that the Company shall will not for any such purpose be required to (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(iv)2.4, it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, jurisdiction or (C) file a general consent to take any action which would subject it to general or unlimited service of process in any jurisdiction unless the Company is already subject to service in such jurisdiction where it is not then so subject.jurisdiction;
(v) Use its best efforts to cause 2.4.6. notify each Holder of such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses promptly as practicable (A)) after becoming aware of the happening of any event as a result of which the Registration Statement, (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statementthe Registration Statement, as then in effect, includes or any prospectus supplement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 misleading, (B) if the board of directors of the Company determines, in the good faith exercise of its business judgment, that the disposition of Registrable Securities pursuant to the Registration Statement would (I) require disclosure of material non-public information concerning the Company which, at such time, is not in the best interest of the Company, or (II) otherwise materially and adversely affect the Company or its stockholders because it would (1) materially interfere with a material acquisition, corporate reorganization, or other similar transaction involving the Company; (2) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (3) render the Company unable to comply with requirements under the Securities Act or Exchange Act, (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the receipt by the Company of written correspondence from the SEC notifying the Company that the SEC may undertake either of the foregoing or (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction, and notify each Holder of such Registrable Securities when such events or circumstances have ended and the applicable Registration Statement is again available for use in connection with dispositions of Registrable Securities and, if appropriate, the Company will in connection therewith prepare a supplement or amendment to the prospectus included in the applicable Registration Statement as promptly as reasonably practicable, but in any event within 60 days of the Company’s suspension notice, so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances then existing.under which they were made, not misleading, and to take such other commercially reasonable action as promptly as reasonably practicable as is necessary to remove a stop order, suspension, written notification from the SEC of the possibility thereof or proceedings related thereto. The Company shall not be permitted to suspend usage of the Registration Statement in the case of any event described in clause (A) or (B) of the preceding sentence more than a total of sixty (60) days in any twelve-month period;
2.4.7. notify each Holder of such Registrable Securities as promptly as practicable of (viiA) Otherwise the filing of the Registration Statement 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 other registration statement or any post-effective amendment thereto, when the same has become effective; and (B) the receipt of any written comments from the SEC with respect to any filing referred to in clause (A) and any written request by the SEC for amendments or supplements to the Registration Statement or any prospectus or prospectus supplement thereto;
2.4.8. upon request and subject to appropriate confidentiality arrangements between the parties, furnish to all Holders copies of all transmittal letters or other correspondence with the SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) to the extent related to a Registration Statement filed pursuant to Section 2.1 or Section 2.2;
2.4.9. in the case of an Underwritten Offering, use commercially reasonable efforts to cause to be furnished, upon request of the underwriters, (i) an opinion of counsel for the Company dated the date of the closing under the underwriting agreement and (ii) a “comfort” letter, dated the pricing date of such Underwritten Offering and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the independent public accountants who have audited any of the Company’s financial statements included or incorporated by reference into the Registration Statement, and each of the opinion and the “comfort” letter shall be in customary form and cover such matters with respect to such Registration Statement (and the prospectus and any prospectus supplement included therein) as such underwriters may reasonably request and which are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in similar Underwritten Offerings of securities;
2.4.10. otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement, which earnings statement of the Company which will shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 promulgated thereunder;
(viii) Use its best efforts in cooperation 2.4.11. make available to the appropriate representatives of the Managing Underwriter and Holders access to such information and Company personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act to the extent such defense is available to such person; provided, that the Company need not disclose any non-public information to any such representative unless and until such representative has entered into a confidentiality agreement with the underwriters, if any, to list such Company;
2.4.12. provide a transfer agent and registrar for all Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or Registration Statement not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other later than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.Registration Statement;
(d) If 2.4.13. if requested by a registration pursuant Holder and subject to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold review by the Company and approval by the other sellers shall Company, such approval not to be allocated between initial shares unreasonably withheld or delayed, (i) incorporate in a prospectus supplement or post-effective amendment such information as such Holder reasonably requests to be included therein relating to the sale and option shares as agreed ordistribution of Registrable Securities, in including information with respect to the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be included sold in such registration.offering and (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and
(h) Notwithstanding anything 2.4.14. cause all such Registrable Securities to the contrary herein, be listed or quoted on each securities exchange or nationally recognized automated quotation system on which similar securities issued by the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may are then be sold without registration under Rule 144 listed or other provision of the Securities Actquoted.
Appears in 2 contracts
Sources: Registration Rights Agreement (Broadfin Capital, LLC), Registration Rights Agreement (Biodelivery Sciences International Inc)
Registration Procedures. (a) If and whenever In connection with the Company is required to use its best efforts to effect or cause the Company’s registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofobligations hereunder, the Company will, as expeditiously as possibleshall:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (amendments, including post-effective amendments) amendments and supplements supplements, to such registration statement each Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement continuously effective as to the applicable Registrable Securities for a period the Effectiveness Period, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as may so supplemented or amended, to be requested by filed pursuant to Rule 424, (iii) respond as promptly as reasonably practicable to any comments received from the Requesting Holders not exceeding nine Commission with respect to each Registration Statement or any amendment thereto, and (9iv) months and to during the Effectiveness Period, comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities Registrable Securities covered by a Registration Statement until such registration statement during time as all of such period Registrable Securities shall have been disposed of (subject to the terms of this Agreement) in accordance with the intended methods of disposition by the seller or sellers Holders thereof as set forth in such registration statementRegistration Statement as so amended or in such Prospectus as so supplemented; provided, however, that each Holder shall be responsible for the delivery of the Prospectus to the Persons to whom such Holder sells any of the Shares or the Warrant Shares (including in accordance with Rule 172 under the Securities Act), and Holder agrees to dispose of Registrable Securities in compliance with applicable federal and state securities laws.
(b) Notify each Holder as promptly as reasonably practicable, but in no event longer than seven (7) Trading Days after such event, (i) when the Registration Statement has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information that pertains to the Holders as “Selling Stockholders” or the “Plan of Distribution”, (iii) Furnish of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any governmental action, litigation, hearing or other proceeding (“Proceedings”) for that purpose, and (iv) of the receipt by the Company of any notification with respect to each holder 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.
(c) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or 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 soon as practicable.
(d) Prior to any resale of Registrable Securities covered by the registration statement and to each underwritera Holder, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities covered for the resale by such registration statement the Holder under such other the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each seller shall reasonably request, registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts and or things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned covered by such seller in such jurisdictionseach Registration Statement; provided, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, or (B) subject the Company to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process material tax in any such jurisdiction where it is not then so subject.
(v) Use its best efforts subject or file a general consent to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition service of such Registrable Securities, subject, however, to the limitations set forth process in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offerjurisdiction.
(e) If requested by a registration Holder, cooperate with such Holder to facilitate the preparation and delivery of certificates or book entry statements representing Registrable Securities to be delivered to a transferee pursuant to Section 6.1 a Registration Statement, which certificates or 6.2 involves an Underwritten Offeringbook entry statements shall be free, any holder to the extent permitted by the Subscription Agreement and under law, of all restrictive legends, and to enable such Registrable Securities requesting to be included in such registration denominations and registered in such names as any such Holder may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3reasonably request.
(f) In any registration pursuant [Reserved.]
(g) [Reserved.]
(h) [Reserved.]
(i) The Company may require each selling Holder to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information a certified statement as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”i) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each Common Stock beneficially owned by such holder has requested Holder and any Affiliate thereof, (ii) any FINRA affiliations, (iii) any natural persons who have the power to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 vote or other provision dispose of the Securities ActCommon Stock and (iv) any other information as may be requested by the Commission, FINRA or any state securities commission.
Appears in 2 contracts
Sources: Registration Rights Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp), Registration Rights Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Registration Procedures. (a) If In connection with SunCoke’s Registration obligations under Section 2.1 and whenever the Company is required to Section 2.2, SunCoke shall use its reasonable best efforts to effect or cause such Registration to permit the registration sale of any such Registrable Securities under in accordance with the Securities Act as provided in Section 6.1 intended method or 6.2 hereof, the Company will, methods of distribution thereof as expeditiously as possiblereasonably practicable (but in no event, in the case of the initial filing of the registration statement, later than 30 days after the date of a demand under Section 2.1 if the applicable registration form is Form S-3 or a successor form, and for any other form, 60 days from the date of such demand), and in connection therewith SunCoke shall:
(i) Prepare andprepare and file the required Registration Statement including all exhibits and financial statements required under the Securities Act to be filed therewith, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file and before filing with the Commission SEC a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become and remain effective; provided thatRegistration Statement or Prospectus, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will (A) furnish to the counsel selected by underwriters, if any, and to the Requesting Holders Holders, copies of all such documents proposed prepared to be filed, which documents will be subject to the timely and reasonable review of such underwriters and such Holders and their respective counsel; , and provided(B) not file with the SEC any Registration Statement or Prospectus or amendments or supplements thereto to which Holders or the underwriters, furtherif any, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.shall reasonably object;
(ii) Prepare except in the case of a Shelf Registration, Convertible Registration or Exchange Registration, prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by of the Shares registered thereon until the earlier of (A) such registration statement during time as all of such period Shares have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement or (B) the expiration of nine months after such registration statement becomes effective, plus the number of days that any filing or effectiveness has been delayed under Section 2.1(d);
(iii) Furnish in the case of a Shelf Registration (but not including any Convertible Registration), prepare and file with the SEC such amendments and supplements to each holder of Registrable Securities covered by the such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Shares subject thereto for a period ending on the earlier of (A) 36 months after the effective date of such registration statement plus the number of days that any filing or effectiveness has been delayed under Section 2.1(d), and (B) the date on which all the Shares subject thereto have been sold pursuant to such registration statement;
(iv) in the case of a Convertible Registration or an Exchange Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all of the Shares subject thereto until such time as the rules, regulations and requirements of the Securities Act and the terms of the Convertible Securities no longer require such Shares to be registered under the Securities Act;
(v) notify the participating Holders and the managing underwriter or underwriters, if any, and (if requested) confirm such advice in writing and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by SunCoke (A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, when the applicable Prospectus or any amendment or supplement to such Prospectus has been filed, (B) of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority 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 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 SunCoke in any applicable underwriting agreement cease to be true and correct in all material respects, and (E) of the receipt by SunCoke 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;
(vi) subject to Section 2.1(d), promptly notify each selling Holder and the managing underwriter or underwriters, if any, when SunCoke becomes aware of the occurrence of any event as a result of which the applicable Registration Statement or the Prospectus included in such Registration Statement (as then in effect) 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 and any preliminary Prospectus, 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 in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holder and the managing underwriter or underwriters, if any, an amendment or supplement to such Registration Statement or Prospectus which will correct such statement or omission or effect such compliance;
(vii) use its reasonable best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(viii) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the Holders 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;
(ix) furnish to each selling Holder 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);
(x) deliver to each selling Holder and each underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Holder or underwriter may reasonably request (it being understood that SunCoke consents to the use of such Prospectus or any amendment or supplement thereto by each selling Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, Prospectus or any amendment or supplement thereto) and such other documents as such Person selling Holder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.Securities by such Holder or underwriter;
(ivxi) Use on or prior to the date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify qualify, and cooperate with each selling Holder, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable Securities covered by such registration statement for offer and sale under such other the securities or blue sky “Blue Sky” laws of such jurisdictions each state and other jurisdiction of the United States as each seller shall any selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request, request in writing and do any and all other acts and or things which may be reasonably necessary or advisable to enable keep such seller registration or qualification in effect for so long as such Registration Statement remains in effect and so as to consummate permit the disposition continuance of sales and dealings in such jurisdictions of the United States for so long as may be necessary to complete the distribution of the Registrable Securities owned covered by such seller in such jurisdictions, except the Registration Statement; provided that the Company shall SunCoke will not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to taxation or general or unlimited service of process in any such jurisdiction where it is not then so subject.;
(vxii) Use in connection with any sale of Registrable Securities that will result in such securities no longer being Registrable Securities, cooperate with each selling Holder 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 Securities Act legends; and to register such Registrable Securities in such denominations and such names as such selling Holder or the underwriter(s), if any, may request at least two Business Days prior to such sale of Registrable Securities; provided that SunCoke may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System;
(xiii) cooperate and assist in any filings required to be made with the Financial Industry Regulatory Authority and each securities exchange, if any, on which any of SunCoke’s securities are then listed or quoted and on each inter-dealer quotation system on which any of SunCoke’s securities are then quoted, and in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of each such exchange, and use its reasonable best efforts to cause such the Registrable Securities covered by such registration statement the applicable Registration Statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) 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;
(xiv) not later than the effective date of the applicable Registration Statement, subjectprovide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with The Depository Trust Company; provided that SunCoke may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System;
(xv) obtain for delivery to and addressed to each selling Holder and to the underwriter or underwriters, howeverif any, opinions from the general counsel or deputy general counsel for SunCoke, in each case dated the effective date of the Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, and in each such case in customary form and content for the type of Underwritten Offering;
(xvi) in the case of an Underwritten Offering, obtain for delivery to and addressed to SunCoke and the managing underwriter or underwriters and, to the limitations set forth extent requested, each selling Holder, a cold comfort letter from SunCoke’s independent certified public accountants in clauses (A)customary form and content for the type of Underwritten Offering, (B) dated the date of execution of the underwriting agreement and (C) of Section 6.3(a)(iv) hereof.brought down to the closing under the underwriting agreement;
(vixvii) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission SEC and make generally available to its security holders, in each case as soon as reasonably practicable, but not no later than ninety (90) calendar 90 days after the close end of the 12-month period covered thereby (one hundred eighty (180) calendar days in case beginning with the period covered corresponds to a fiscal year first day of SunCoke’s first quarter commencing after the effective date of the Company)applicable Registration Statement, an earnings statement of the Company which will satisfy satisfying the provisions of Section 11(a) of the Securities Act.Act and the rules and regulations promulgated thereunder and covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first month after the effective date of the Registration Statement;
(viiixviii) Use its best efforts provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xix) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of SunCoke’s securities are then listed or quoted and on each inter-dealer quotation system on which any of SunCoke’s securities are then quoted;
(xx) provide (A) each Holder participating in cooperation with the underwritersRegistration, (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act), if any, to list such of the Registrable Securities on to be registered, (C) the sale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and (E) any attorney, accountant or other agent or representative retained by such Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each securities exchange as they may reasonably designateprospectus included therein or filed with the SEC, and each amendment or supplement thereto, and to require the insertion therein of material, furnished to SunCoke in writing, which securities exchanges shall in the reasonable judgment of such Holder(s) and their counsel should be acceptable included; and for a reasonable period prior to the Company.
filing of such registration statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the parties referred to in (ixA) In the event the offering is an Underwritten Offeringthrough (E) above, use its best efforts all pertinent financial and other records, pertinent corporate documents and properties of SunCoke that are available to obtain a “cold comfort” letter from SunCoke, and cause all of SunCoke’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods to discuss the Company business of SunCoke and to supply all information available to SunCoke reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing; and
(xxi) to cause the senior executive officers of SunCoke to participate at reasonable times and for reasonable periods in the customary form “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any such Underwritten Offering and covering otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, except to the extent that such matters participation materially interferes with the management of SunCoke’s business; provided that the effectiveness period for any Demand Registration shall be increased on a day-for-day basis by the period of time that management cannot participate; and
(xxii) take all other customary steps reasonably necessary to effect the registration of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable SecuritiesSecurities contemplated hereby.
(b) Each holder As a condition precedent to any Registration hereunder, SunCoke may require each Holder as to which any Registration is being effected to furnish to SunCoke such information regarding the distribution of such securities and such other information relating to such Holder, its ownership of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.oth
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (SunCoke Energy, Inc.)
Registration Procedures. (a) If and whenever this Agreement contemplates ----------------------- that the Company is required to use its best efforts to will effect or cause the registration under the Act of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofshares held by Holder, the Company will, as expeditiously as possibleshall:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), 3.1 prepare and file with the Securities and Exchange Commission (the "SEC") a registration statement on the appropriate form with respect to such Registrable Securities shares and use its best efforts to cause such registration statement to become and remain effective; effective as provided thatherein, in the case of a registration provided for in Section 6.1 or 6.2 hereof, that before filing any amendments or supplements to a registration statement or prospectus or any amendments or supplements theretoprospectus, including documents incorporated by reference after the initial filing of the registration statement, the Company will furnish to Holder and the counsel selected by the Requesting Holders underwriters, if any, copies of all such documents proposed to be filedfiled at least five business days prior thereto, which documents will be subject to the timely and reasonable review of such counsel; Holder and providedunderwriters, further, that and the Company may discontinue any registration of its securities that is being effected pursuant will not file an amendment to Section 6.2 at any time prior to the effective date of the a registration statement relating thereto.or prospectus or any supplement thereto (including such documents incorporated by reference) to which Holder or the underwriters, if any, shall reasonably object;
(ii) Prepare 3.2 prepare and file with the Commission SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and to take such other action as may be necessary to keep such registration statement effective for a until the earlier of (i) the completion of the distribution of shares so registered, or (ii) expiration of the 120 day period as following immediately the effective date of such registration statement (at which time unsold shares may be requested by the Requesting Holders not exceeding nine (9) months deregistered), and to otherwise comply with the applicable provisions of the Securities Act with respect and the rules and regulations promulgated under the Act;
3.3 furnish to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement Holder and its counsel, and to each underwriterunderwriter of the shares to be sold by Holder, if anywithout charge, of such Registrable Securities such number of copies of one or more preliminary prospectuses, any supplements thereto and a final prospectus and preliminary prospectus for delivery any supplements thereto in conformity with the requirements of the Securities Act, and such other documents as Holder or such Person underwriter may reasonably request request, in order to facilitate the public sale or other disposition of such shares;
3.4 if, during any period in which, in the Registrable Securities.opinion of the Company's counsel, a prospectus relating to the shares is required to be delivered under the Act in connection with any offer or sale contemplated by any registration statement, any event known to the Company occurs as a result of which the prospectus would include an untrue statement of material fact or omit to state any material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the related prospectus to comply with the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the respective rules and regulations thereunder, to notify Holder promptly and to prepare and file with the SEC an amendment or supplement, whether by filing such documents pursuant to the Act or the Exchange Act as may be necessary to correct such untrue statement or omission or to make any registration statement or the related prospectus comply with such requirements and to furnish to Holder and its counsel such amendment or supplement to such registration statement or prospectus;
3.5 timely to file with the SEC (i) any amendment or supplement to any registration statement or to any related prospectus that is required by the Act or the Exchange Act or requested by the SEC, and (ii) all documents (and any amendments to previously filed documents) required to be filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act;
3.6 within five days of filing with the SEC of (i) any amendment or supplement to any registration statement, (ii) any amendment or supplement to the related prospectus, or (iii) any document incorporated by reference in any of the foregoing or any amendment of or supplement to any such incorporated document, to furnish a copy thereof to Holder;
3.7 to advise Holder and its counsel promptly (i) when any post- effective amendment to any registration statement becomes effective and when any further amendment of or supplement to the prospectus shall be filed with the SEC, (ii) of any request or proposed request by the SEC for an amendment or supplement to any registration statement, to the related prospectus, to any document incorporated by reference in any of the foregoing or for any additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of any registration statement or any order directed to the related prospectus or any document incorporated therein by reference or the initiation or threat of any stop order proceeding or of any challenge to the accuracy or adequacy of any document incorporated by reference in such prospectus, (iv) Use of receipt by the Company of any notification with respect to the suspension of the qualification of the shares for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose, and (v) of the happening of any event which makes untrue any statement of a material fact made in any registration statement or the related prospectus as amended or supplemented or which requires the making of a change in such registration statement or such prospectus as amended or supplemented in order to make any material statement therein not misleading;
3.8 on or before the date a registration statement is declared effective, use its best efforts to register or qualify such Registrable Securities the shares covered by such registration statement under such other the securities or blue sky laws of such jurisdictions as each seller Holder shall reasonably request, considering the nature and size of the offering, and do any and all such other acts and things which as may be reasonably necessary or advisable to enable such seller Holder to consummate the public sale or other disposition in each such jurisdiction of the Registrable Securities owned by such seller in such jurisdictionsshares; provided, except however, that the Company shall not for any such purpose be required (A) obligated to qualify to do business as a foreign corporation in to do business under the laws of any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), in which it is has not then so been qualified, or (B) to subject itself file any general consent to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.process;
(v) Use 3.9 use its best efforts to cause such Registrable Securities covered by such all shares sold pursuant to any registration statement to be registered or qualified with or approved by listed on each national securities exchange, if any, on which such other governmental agencies or authorities shares are then listed;
3.10 enter into customary agreements (including, without limitationif applicable, state securities commissionsan underwriting agreement in customary form) and take such other actions as may be necessary are reasonably required in order to enable the seller expedite or sellers thereof to consummate facilitate the disposition of such Registrable Securities;
3.11 make reasonably available for inspection by Holder, subject, however, any underwriter participating in any disposition pursuant to the limitations set forth in clauses registration statement, and any attorney, accountant or other agent retained by Holder or underwriter (Acollectively, the "Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (Bcollectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such registration statement. Records and other information which the Company determines, at any time when a prospectus relating thereto is required in good faith, to be delivered under confidential and which it notifies the Securities Act within Inspectors are confidential shall not be disclosed by the appropriate period mentioned in Section 6.3(a)(ii), if Inspectors unless (i) the Company becomes aware that the prospectus included in such registration statement, 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 misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers disclosure of such Registrable SecuritiesRecords, such prospectus shall 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 opinion of the circumstances then existing.
(vii) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may counsel reasonably designate, which securities exchanges shall be acceptable to the Company., is necessary to avoid or correct a misstatement or omission in the registration statement, or (ii) the release of such records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Holder agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(ix) In the event the offering is an Underwritten Offering, 3.12 use its best efforts to obtain a “"cold comfort” " letter from the Company's independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such "cold comfort" letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities willHolder, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven reasonably requests;
3.13 use its best efforts to obtain an opinion or opinions from counsel for the Company in customary form;
3.14 make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the registration statement at the earliest possible moment; and
3.15 cooperate with Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (7not bearing any restrictive legends) days before representing securities to be sold under the registration statement, and ending one hundred eighty (180) days (or enable such lesser number securities to be in such denominations and registered in such names as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreesunderwriters, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may beany, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case Holder may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offerrequest.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ion Laser Technology Inc), Registration Rights Agreement (Ion Laser Technology Inc)
Registration Procedures. (a) If and whenever the Company is required by the provisions of this Agreement to use its commercially reasonable best efforts to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofthis Agreement, the Company will, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given Use its commercially reasonable best efforts to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC, a registration statement with respect to such Registrable Securities within the time periods specified herein, and use its commercially reasonable best efforts to cause such registration statement to become effective as promptly as practicable and to remain effective; provided that, in effective under the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, Securities Act until (i) the Company will furnish Lapse Date with respect to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected registrations pursuant to Section 6.2 at any 2(b) and (ii) until the earlier of such time prior to the effective date of the as all securities covered thereby are no longer Registrable Securities or one hundred and eighty (180) days after such registration statement relating theretobecomes effective with respect to registrations pursuant to Section 2(a), in every case as any such period may be extended pursuant to Section 5(h) hereto.
(iib) Prepare and file (and, if applicable, cause to become effective) with the Commission SEC, as promptly as practicable, such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a such period of time required by Section 5(a) above, as such period may be requested by the Requesting Holders not exceeding nine extended pursuant to Section 5(h) hereto.
(9c) months and to comply Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such the period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in during which any such registration statementstatement is required to be effective.
(iiid) Furnish to each holder any Holder and any underwriter of Registrable Securities covered by the Securities, (i) such number of copies (including manually executed and conformed copies) of such registration statement and to of each underwriteramendment thereof and supplement thereto (including all annexes, if anyappendices, of such Registrable Securities schedules and exhibits), (ii) such number of copies of a the prospectus used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Actfinal prospectus), and (iii) such number of copies of other documents documents, in each case as such Person Holder or such underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securitiesrequest.
(ive) Use its commercially reasonable best efforts to register or qualify such all Registrable Securities covered by such registration statement under such other the securities or "blue sky sky" laws of such jurisdictions states of the United States as each seller any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably necessary requested by such Holder or advisable to enable such seller underwriter to consummate the offering and disposition of the Registrable Securities owned by such seller in such jurisdictions; provided, except however, that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), wherein it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(vf) Use its Use, as soon as practicable after the effectiveness of the registration statement, commercially reasonable best efforts to cause such the Registrable Securities covered by such registration statement to be registered or qualified with with, or approved by by, such other United States public, governmental agencies or authorities (includingregulatory authorities, without limitationif any, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate required in connection with the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vig) Immediately notify each seller of Registrable Securities Use its commercially reasonable best efforts to list the Common Stock covered by such registration statementstatement on any securities exchange (or if applicable, at The NASDAQ Stock Market) on which any time securities of the Company are then listed, if the listing of such Registrable Securities in then permitted under the applicable rules of such exchange (or if applicable, The NASDAQ Stock Market).
(h) Notify each Holder as promptly as practicable and, if requested by any Holder, confirm such notification in writing, (i) when a prospectus relating thereto is required or any prospectus supplement has been filed with the SEC, and, with respect to be delivered under a registration statement or any post-effective amendment thereto, when the Securities Act within same has been declared effective by the appropriate period mentioned in Section 6.3(a)(ii)SEC, if (ii) of the issuance by the SEC of any stop order or the coming to the Company's attention of the initiation of any proceedings for such or a similar purpose, (iii) of the receipt by the Company becomes aware of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (iv) of the occurrence of any event which requires the making of any changes to a registration statement or related prospectus so that the prospectus included in such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existing; use its best efforts to under which they were made, not misleading (and the Company shall promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver each Holder a reasonable number of copies of an a supplemented or amended or supplemental prospectus as may be necessary so such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 therein, in the light of the circumstances then existing.
under which they are made, not misleading), and (viiv) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement 's determination that the filing of a post-effective amendment to the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges Registration Statement shall be acceptable to necessary or appropriate. Upon the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in clause (iv) or (v) of this Section 6.3(a)(vi5(h), the Holders shall forthwith discontinue any offer and disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company's expense, all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders' possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the registration statements are required to be effective as set forth under Section 6.3(a)(vi)5(a) shall be extended by the number of days from and including the date such notice is provided, to and including the date when Holders shall have received copies of the corrected prospectus.
(ci) If a registration pursuant Enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to Section 6.1 expedite or 6.2 hereof involves an Underwritten Offeringfacilitate the disposition of such Registrable Securities, each holder and in that regard, deliver to the Holders such documents and certificates as may be reasonably requested by any Holder of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement including, without limitation, using commercially reasonable best efforts to cause its independent accountants to deliver to the Company's Board of Trustees (and to the Holders of Registrable Securities agreesbeing sold in any registration) an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement or, whether or if such letter cannot such holder’s be obtained through the exercise of commercially reasonable best efforts, cause its independent accountants to deliver to the Company's Board of Trustees (and to the Holders of Registrable Securities are being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the Company's financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 accountants under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent then applicable standards of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or Association of Independent Certified Accountants with respect to such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offeringstatement. In addition, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution Holders of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that being included in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain registration hereunder an opinion of its counsel substantially identical in substance and scope to that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Actcustomarily delivered to underwriters in public offerings.
Appears in 2 contracts
Sources: Registration Rights Agreement (Brandywine Realty Trust), Registration Rights Agreement (Brandywine Realty Trust)
Registration Procedures. WorldPort shall:
(a) If and whenever the Company is required to use Use its best reasonable efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possible:
(iA) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause the Initial Stock within ninety (90) days after the Closing, (B) have such registration statement declared effective within one hundred and fifty (150) days from the date of the Closing (one hundred and twenty (120) days if Worldport is, and remains, eligible to become use a Form S-3 Registration Statement), and (C) to cause the registration statement to remain effective; provided thateffective until the earlier of (i) the date when all Registrable Securities related to the Initial Stock have been sold, in or (ii) two (2) years from the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing Closing;
(b) Use its reasonable efforts to (A) prepare and file with the Commission a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish with respect to the counsel selected by Deferred Stock within ninety (90) days of the Requesting Holders copies date of all issuance of the Deferred Stock to Holder as provided in the Purchase Agreement, (B) have such documents proposed to be filed, which documents will be subject to registration statement declared effective within one hundred and fifty (150) days from the timely and reasonable review date of such counsel; issuance (one hundred and providedtwenty (120) days if Worldport is, furtherand remains, that the Company may discontinue any registration of its securities that is being effected pursuant eligible to Section 6.2 at any time prior to the effective date of use a Form S-3 Registration Statement), and (C) cause the registration statement relating thereto.
to remain effective until the earlier of (i) the date when all Registrable Securities related to the Deferred Stock have been sold, or (ii) Prepare two (2) years from the date of issuance of the Deferred Stock as provided in the Purchase Agreement;
(c) Use its reasonable efforts to prepare and file with the Commission such amendments and supplements (including post-effective amendments) and supplements to such registration statement statements and the prospectus prospectuses used in connection therewith as may be necessary to keep such the registration statement statements effective for a the period as may be requested by the Requesting Holders not exceeding nine (9referred to in Section 2(a) months and to Section 2(b) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such the registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such the registration statement.;
(iiid) Furnish to each holder seller of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of a the registration statement, each amendment and supplement thereto (including post-effective amendments), the prospectus and included in the registration statement (including each preliminary prospectus for delivery in conformity with the requirements of the Securities Act, prospectus) and such other documents as such Person Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions, except that the Company shall not for any such purpose be required (A) to qualify to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), it is not then so qualified, or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.Holder;
(ve) Use its best efforts to cause such Registrable Securities covered by such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition Notify each Holder of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of misleading, and WorldPort shall promptly prepare a supplement or amendment (including post-effective amendments) to the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include contain an untrue statement of a material fact or omit to state a material any fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.misleading;
(viif) Otherwise use its best efforts to comply with Cause all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange on which similar securities issued by WorldPort are then listed, if any;
(g) If reasonably requested by a Holder promptly incorporate in a prospectus such information as they may reasonably designate, which securities exchanges shall the Holder indicates should be acceptable included relating to the Companyplan of distribution.
(ixh) In Promptly notify the Holders of Registrable Securities of the following events and (if requested by any such Persons) confirm such notification in writing: (i) the filing of the prospectus or any prospectus supplement and the registration statement and any amendment or post-effective amendment thereto and, with respect to the registration statement or any post-effective amendment thereto, the declaration of the effectiveness of such document; (ii) any requests by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information; (iii) the issuance or threat of issuance by the Commission of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose; and (iv) the receipt by WorldPort of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threat of initiation of any proceeding for such purpose;
(i) Make every reasonable effort to prevent the entry of any order suspending the effectiveness of the registration statement and, in the event of the offering is an Underwritten Offeringissuance of any such stop order, or of any order suspending or preventing the use of any related prospectus, WorldPort shall use its reasonable efforts promptly to obtain the withdrawal of such order;
(j) Cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends, and enable such Registrable Securities to be in such lots and registered in such names as the Holders of Registrable Securities may request at least two business days prior to any delivery of Registrable Securities to such Holders of Registrable Securities;
(k) To the extent required under the applicable state's law, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily (x) register or qualify all Registrable Securities covered by such letters as registration statement under the Requesting state securities or "blue sky" laws of up to 10 states in the United States selected by Hostmark, (y) keep such registration in effect during the term of this Agreement and (z) take any other action which may be reasonably necessary or advisable to enable the Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition of the Registrable Securities to consummate the disposition of such Registerable Securities in such jurisdictions pursuant to the registration statement covering such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi)Registration Statement.
(cl) If a registration pursuant Take actions similar to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder those set forth in clause (k) for such additional states as Hostmark may request in writing provided that all of Registrable Securities agrees, whether or not WorldPort's out-of-pocket costs and expenses related to taking such holder’s Registrable Securities are included actions in such registration, not to effect any public sale or distribution, additional jurisdictions (including any sale pursuant to Rule 144 under the Securities Act, reasonable fees and expenses of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7WorldPort's legal counsel) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationpaid by Hostmark.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sturm Donald L), Registration Rights Agreement (Worldport Communications Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereofSections 3.1 and 3.2, the Company will, as expeditiously as possiblewill promptly:
(ia) Prepare andsubject to clauses (x), (y) and (z) of Section 3.1(b), prepare and file with the Securities and Exchange Commission as soon as practicable and in any event within sixty (60) calendar days 90 days, after the end receipt of the period within which requests for registration may be given a request pursuant to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission Section 3.1 a registration statement with respect to such Registrable Securities securities, make all required filings with the NASD and use its best efforts to cause such registration statement to become and remain effective; provided that, in effective at the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.nearest practicable date;
(iib) Prepare prepare and file with the Securities and Exchange Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and such other documents as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement., but in no event for a period of more than six months after such registration statement becomes effective;
(iiic) Furnish furnish to each holder counsel (if any) selected by the holders of a majority (by number of shares) of the Registrable Securities covered by the such registration statement and to each underwritercounsel for the underwriters in any underwritten offering copies of all documents proposed to be filed with the Securities and Exchange Commission (including all documents to be filed on a confidential basis) in connection with such registration, which documents will be subject to the review of such counsel; the Company shall not file any registration statement or prospectus or any amendments or supplements thereto pursuant to a registration under Section 3.1(a) if the holders of a majority of the Registrable Securities covered by such registration statement, their counsel, or the underwriters, if any, shall reasonably object in writing;
(d) furnish to each seller of such Registrable Securities securities, without charge, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case, including all exhibits and documents filed therewith (other than those filed on a confidential basis), except that the Company shall not be obligated to furnish any seller of securities with more than two copies of such exhibits and documents), such number of copies of a the prospectus included in such registration statement (including each preliminary prospectus and preliminary prospectus for delivery any summary prospectus) in conformity with the requirements of the Securities Act, and such other documents documents, as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.securities owned by such seller;
(ive) Use use its best efforts to register or qualify such Registrable Securities the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each seller shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities securities owned by such seller in such jurisdictionsseller, except that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), wherein it is not then so qualified, or (B) to subject itself to taxation in any such jurisdictionjurisdiction wherein it is not so subject, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where wherein it is not then so subject.;
(vf) Use its furnish to each seller a signed counterpart, addressed to the sellers, of
(i) an opinion of counsel for the Company experienced in securities law matters, dated the effective date of the registration statement, and
(ii) a "comfort" letter signed by the independent public accountants who have issued an audit report on the Company's financial statements included in the registration statement, subject to such seller having executed and delivered to the independent public accountants such certificates and documents as such accountants shall reasonably request, covering substantially the same matters with respect to the registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten Public Offerings of securities;
(i) notify each seller of any securities covered by such registration statement if such registration statement, at the time it or any amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable, prepare and file with the Securities and Exchange Commission a post-effective amendment to such registration statement and use best efforts to cause such Registrable Securities covered by post-effective amendment to become effective such that such registration statement, as so amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be registered stated therein or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable make the seller or sellers thereof to consummate the disposition of such Registrable Securitiesstatements therein not misleading, subject, however, to the limitations set forth in clauses (A), (B) and (Cii) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii)Act, if the Company becomes aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existing; use its best efforts to under which they were made, not misleading, and, as promptly as is practicable, prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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 therein, in the light of the circumstances then existing.under which they were made, not misleading;
(viih) Otherwise otherwise use its best efforts to comply with all applicable rules and regulations of the Commission Securities and Exchange Commission, and make generally available to its security holders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.;
(viiii) Use its best efforts in cooperation with the underwritersnotify each seller of any securities covered by such registration statement (i) when such registration statement, if anyor any post-effective amendment to such registration statement, to list such Registrable Securities on each securities exchange as they may reasonably designateshall have become effective, which securities exchanges shall be acceptable or any amendment of or supplement to the Company.prospectus used in connection therewith shall have been filed, (ii) of any request by the Securities and Exchange Commission to amend such registration statement or to amend or supplement such prospectus or for additional information, (iii) of the issuance by the Securities and Exchange Commission of any stop order suspending the effectiveness of such registration statement or of any order preventing or suspending the use of any preliminary prospectus, and (iv) of the suspension of the qualification of such securities for offering or sale in any jurisdiction, or of the institution of any proceedings for any of such purposes;
(ixj) In the event the offering is an Underwritten Offering, use its best efforts (i) (x) to list such securities on any securities exchange on which the Common Stock is then listed or, if no Common Stock is then listed, on an exchange selected by the Company, if such listing is then permitted under the rules of such exchange or (y) if such listing is not practicable or the Board determines that quotation as a NASDAQ National Market System security is preferable, to secure designation of such securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure NASDAQ authorization for such securities, and, without limiting the foregoing, to arrange for at least two market makers to register as such with respect to such securities with the NASD, (ii) to provide a transfer agent and registrar for such Registrable Securities not later than the effective date of such registration statement and (iii) to obtain a “cold comfort” letter from the independent public accountants CUSIP number for the Registrable Securities; and
(k) use every reasonable effort to obtain the lifting of any stop order that might be issued suspending the effectiveness of such registration statement or of any order preventing or suspending the use of any preliminary prospectus. The Company in customary form may require each seller of any securities as to which any registration is being effected to furnish to the Company such information regarding such seller and covering the distribution of such matters of the type customarily covered by such letters securities as the Requesting Holders Company may from time to time reasonably request in writing and as shall be required by law in connection therewith. Each such holder agrees to furnish promptly to the Company all information required to be disclosed in order to effect an Underwritten Offering make the information previously furnished to the Company by such holder not materially misleading. The Company agrees not to file or make any amendment to any registration statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, which refers to any seller of any securities covered thereby by name, or otherwise identifies such seller as the holder of any securities of the Company, without the consent of such seller, such consent not to be unreasonably withheld, except that no such consent shall be required for any disclosure that is required by law. By acquisition of Registrable Securities, each holder of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order Securities shall be deemed to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, have agreed that upon receipt of any notice from the Company of the happening of any event of the kind described in pursuant to Section 6.3(a)(vi3.3(g), forthwith such holder will promptly discontinue such holder's disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder shall have received, in the case of clause (i) of Section 3.3(g), notice from the Company that such registration statement has been amended, as contemplated by Section 3.3(g), and, in the case of clause (ii) of Section 3.3(g), copies of the supplemented or amended prospectus contemplated by Section 3.3(g). If so directed by the Company, each holder of Registrable Securities will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, in such holder’s 's possession of the prospectus covering such Registrable Securities at the time of receipt of such notice. In the event that the Company shall give any such notice, the period mentioned in Section 3.3(b) shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of any Registrable Securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi3.3(g).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder . Notwithstanding any other provision of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offeringthis Agreement, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event parties hereto acknowledge that the Company shall obtain an opinion of its counsel have no obligation to prepare or file any registration statement prior to the time that all such requested Registrable Securities may then financial information required to be sold without registration under Rule 144 or other provision of the Securities Actincluded therein is available for inclusion therein.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fidelity National Financial Inc /De/), Stock Purchase Agreement (Fidelity National Financial Inc /De/)
Registration Procedures. In connection with any Conversion Notes Shelf Registration or any Registered Exchange Offer or Alternative Conversion Notes Shelf Registration, the Borrower shall use commercially reasonable efforts to:
(a) If prepare and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possible:
(i) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), file with the Commission a registration statement on any form for which the Borrower then qualifies or which counsel for the Borrower shall deem appropriate and which form shall be available for the sale of the Registered Conversion Notes or Registrable Securities, as the case may be, to be registered thereunder in accordance with respect to such Registrable Securities the intended method of distribution thereof, and use its best commercially reasonable efforts to cause such filed registration statement to become effective and remain effectivequalify an indenture relating to the Conversion Notes or the Registered Conversion Notes, as the case may be, substantially in the form of Exhibit C to the Loan Agreement (with such appropriate modifications as may be necessary to reflect the registration of the Conversion Notes pursuant to Sections 2(a) or 2(b)) under the Trust Indenture Act of 1939, as amended; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, (i) that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company Borrower will furnish to the one counsel selected by the Requesting Holders who hold, or will hold, as the case may be, a majority in principal amount of the Registrable Securities to be covered by such registration statement or exchanged pursuant to the Registered Exchange Offer, as the case may be, copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; , and provided, further, (ii) that after the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date filing of the registration statement relating thereto.statement, the Borrower will promptly notify each Holder of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(iib) Prepare and file with furnish to each Holder, prior to filing the Commission such amendments (including post-effective amendments) and supplements to registration statement, if requested, copies of such registration statement as proposed to be filed, and the prospectus used in connection therewith as may be necessary thereafter furnish to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities Holder such number of copies of a such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto), the prospectus and included in such registration statement (including each preliminary prospectus for delivery in conformity with the requirements of the Securities Act, prospectus) and such other documents as such Person Holder may reasonably request in connection with the Registered Exchange Offer or in order to facilitate the public sale or other disposition of the Registrable Securities.Securities owned by such Holder, as the case may be;
(ivc) Use its best use commercially reasonable efforts to register or qualify such Registered Conversion Notes or Registrable Securities covered by such registration statement Securities, as the case may be, under such other securities or blue sky laws of such jurisdictions in the United States as each seller shall may be required in connection with the Registered Exchange Offer or as any Selling Holder or managing Underwriter reasonably request, (in light of the intended plan of distribution) requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller Selling Holder or managing Underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictions, except Selling Holder; provided that the Company shall Borrower will not for any such purpose be required to (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, where it would not otherwise be required to qualify but for the requirements of this Section 6.3(a)(ivparagraph (c), it is not then so qualified, or (Bii) to subject itself to taxation in any such jurisdiction, jurisdiction or (Ciii) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(vd) Use its best use commercially reasonable efforts to cause such Registered Conversion Notes or Registrable Securities covered by such registration statement Securities, as the case may be, to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary by virtue of the business and operations of the Borrower or its Subsidiaries in connection with the Registered Exchange Offer or to enable the seller Selling Holder or sellers Selling Holders thereof to consummate the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.;
(vie) Immediately notify each seller Holder of such Registrable Securities covered by such that is named as a Selling Holder in any registration statementstatement filed pursuant to this Agreement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if occurrence of an event requiring the Company becomes aware that the preparation of a supplement or amendment to such prospectus included in such registration statementso that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; andtherein, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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.in which they were made, not misleading and promptly make available to each such Holder any such supplement or amendment;
(viif) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in enter into customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents agreements (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders are reasonably request required in order to effect an underwritten public offering expedite or facilitate the disposition of such Registrable Securities.;
(bg) Each holder make available for inspection, during normal business hours and on reasonable prior notice, by any Selling Holder of such Registrable Securities willSecurities, upon receipt of any notice from Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the Company "Inspectors") all financial and other records, pertinent corporate documents and properties of the happening Borrower and its Subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Borrower's and the Subsidiaries' officers, directors and employees to supply all information reasonably requested to any such Inspectors in connection with such due diligence. The Borrower may require the Inspector to agree that Records which the Borrower determines, in good faith, to be confidential and any Records which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of any event such Records is necessary to avoid or correct a misstatement or omission of a material fact in such registration statement or (ii) the kind described in Section 6.3(a)(vi), forthwith discontinue disposition release of the Registrable Securities such Records is ordered pursuant to the registration statement covering a subpoena or other order from a court of competent jurisdiction. Each Selling Holder of such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or and shall cause the Inspectors to agree, that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it for any purpose whatsoever, other than the exercise of its due diligence responsibility. Without limiting generality of the preceding sentence, each Selling Holder of such holder’s Registrable Securities are included agrees, and shall cause the Inspectors to agree, that information obtained by it as a result of such inspections shall not be used by it as the basis for any market transactions in the securities of the Borrower or its Affiliates unless and until such registration, not information is made generally available to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, public. Each Selling Holder of any such Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part further agrees, and shall cause the Inspectors to agree, that it will, upon learning that disclosure of such Underwritten Offering)Records is sought in a court of competent jurisdiction, without give notice to the consent Borrower and allow the Borrower, at its expense, to undertake appropriate action to prevent disclosure of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.Records deemed confidential;
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that such sale is pursuant to an underwritten offering, use commercially reasonable efforts to obtain a comfort letter or comfort letters from the Company shall Borrower's independent public accountants in customary form and covering matters of the type customarily covered by comfort letters as the managing Underwriter reasonably requests;
(i) use commercially reasonable efforts to obtain an opinion of its or opinions from counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of for the Securities Act.Borrower in customary form; and
Appears in 2 contracts
Sources: Senior Subordinated Loan Agreement (Schein Pharmaceutical Inc), Senior Subordinated Loan Agreement (Danbury Pharmacal Puerto Rico Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in Section 6.1 pursuant to SECTION 2 or 6.2 hereofSECTION 3, the Company will use its best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended methods of disposition thereof specified by the Holders participating therein. Without limiting the foregoing, the Company in each such case will, as expeditiously as possible:
(ia) Prepare and, in any event within sixty (60) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission (in the case of a Demand Registration), the requisite registration statement with respect to effect such Registrable registration (including such audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and use its best efforts to cause such registration statement to become and remain effective; provided thatPROVIDED, that as far in the case of a registration provided for in Section 6.1 or 6.2 hereof, advance as practical before filing a such registration statement or prospectus or any amendments or supplements amendment thereto, the Company will furnish to the counsel selected by for the Requesting Holders copies of reasonably complete drafts of all such documents proposed to be filedfiled (including exhibits), which documents will be subject and any such Holder shall have the opportunity to the timely object to any information pertaining solely to such Holder that is contained therein and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant will make the corrections reasonably requested by such Holder with respect to Section 6.2 at any time such information prior to the effective date of the filing any such registration statement relating thereto.or amendment;
(iib) Prepare prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the any prospectus used in connection therewith as may be necessary to keep maintain the effectiveness of such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities included in such registration statement during statement, in accordance with the intended methods of disposition thereof, until the earlier of (i) such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.statement and (ii) one hundred eighty (180) days after such registration statement becomes effective;
(c) promptly notify each Requesting Holder and the underwriter or underwriters, if any:
(i) when such registration statement or any prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to such registration statement or any post-effective amendment thereto, when the same has become effective;
(ii) of any written request by the Commission for amendments or supplements to such registration statement or prospectus;
(iii) Furnish of the notification to the Company by the Commission of its initiation of any proceeding with respect to the issuance by the Commission of, or of the issuance by the Commission of, any stop order suspending the effectiveness of such registration statement; and
(iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction;
(d) furnish to each holder seller of Registrable Securities covered by the included in such registration statement such number of conformed copies of such registration statement and to of each underwriteramendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), if any, of such Registrable Securities such number of copies of a the prospectus contained in such registration statement (including each preliminary prospectus and preliminary any summary prospectus) and any other prospectus for delivery in conformity with the requirements of filed under Rule 424 promulgated under the Securities ActAct relating to such Holder's Registrable Securities, and such other documents documents, as such Person seller may reasonably request in order to facilitate the public sale or other disposition of the its Registrable Securities.;
(ive) Use use its best efforts to register or qualify such all Registrable Securities covered by included in such registration statement under such other securities or blue sky laws of such jurisdictions as each seller Holder thereof shall reasonably requestrequest and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and do take any and all other acts and things action which may be reasonably necessary or advisable to enable such seller Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller in such jurisdictionsHolder, except that the Company shall not for any such purpose be required (Ai) to qualify generally to do business as a foreign corporation in any jurisdiction where, wherein it would not but for the requirements of this Section 6.3(a)(iv), it is not then paragraph (e) be obligated to be so qualified, or (Bii) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it consent to general or unlimited service of process in any such jurisdiction where it is not then so subject.jurisdiction;
(vf) Use use its best efforts to cause such all Registrable Securities covered by included in such registration statement to be registered or qualified with or approved by such other governmental agencies or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers each Holder thereof to consummate the disposition of such Registrable Securities, subject, however, ;
(g) to the limitations set forth in clauses extent any of the following are obtained by or furnished to the Company or the underwriters, furnish to each Requesting Holder a signed counterpart, addressed to such Holder (Aand the underwriters, if any), (B) and (C) of Section 6.3(a)(iv) hereof.of
(vii) Immediately an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), reasonably satisfactory in form and substance to such Holder, and
(ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten Public Offerings of securities; and, in the case of the accountants' letter, with respect to events subsequent to the date of such financial statements and such other financial matters as such Holder (or the underwriters, if any) may reasonably request;
(h) notify each seller of Holder whose Registrable Securities covered by are included in such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within Act, of the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that the happening of any event as a result of which any prospectus included in such registration statement, 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 misleading therein, in the light of the circumstances then existing; use its best efforts to prepare under which they were made, not misleading, and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver Holder promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to or an amended or supplemental amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securitiessecurities, such prospectus shall 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 therein, in the light of the circumstances then existing.under which they were made, not misleading;
(viii) Otherwise otherwise use its best efforts to comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holderssecurityholders, in each case as soon as reasonably practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the Company first full calendar month after the effective date of such registration statement, which will earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.Act and Rule 158 promulgated thereunder, and not file any amendment or supplement to such Registration Statement or prospectus to which any such seller or any Requesting Holder shall have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or of the rules or regulations thereunder;
(viiij) Use its best efforts make available for inspection by any Requesting Holder, any underwriter participating in cooperation any distribution pursuant to such registration statement, and any attorney, accountant or other agent retained by such Holder or underwriter (collectively, the "INSPECTORS"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "RECORDS") reasonably necessary to enable the Inspectors to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with the underwriters, if any, to list such registration statement;
(k) provide a transfer agent and registrar for all Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to included in such registration statement not later than the Company.effective date of such registration statement; and
(ixl) In the event the offering is an Underwritten Offering, use its best efforts to obtain cause all Registrable Securities included in such registration statement to be listed, upon official notice of issuance, on any securities exchange on which any of the securities of the same class as the Registrable Securities are then listed. The Company may require each Holder whose Registrable Securities are being registered to, and each such Holder, as a “cold comfort” letter from the independent public accountants for condition to including Registrable Securities in such registration, shall, furnish the Company in customary form and covering the underwriters with such matters information and affidavits regarding such Holder and the distribution of the type customarily covered by such letters securities as the Requesting Holders Company and the underwriters may from time to time reasonably request in order to effect an Underwritten Offering of writing in connection with such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon registration. Upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi)paragraph (h) of this SECTION 4, each Holder will forthwith discontinue such Holder's disposition of the Registrable Securities pursuant to the registration statement covering relating to such Registrable Securities until such holder’s receipt of Holder receives the copies of the supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
paragraph (ch) If of this SECTION 4 and, if so directed by the Company, shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holder's possession of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the period referred to in paragraph (b) of this SECTION 4 shall be extended by a registration number of days equal to the number of days during the period from and including the giving of notice pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, paragraph (h) of this SECTION 4 and to and including the date when each holder of Registrable Securities agrees, whether or not such holder’s Holder whose Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under registration statement receives the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent copies of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (supplemented or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agrees, if so required amended prospectus contemplated by the managing underwriter, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution of Registrable Securities to enable the Company to include such information in the registration statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
paragraph (h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Actthis SECTION 4.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tunes Com Inc), Registration Rights Agreement (Tunes Com Inc)
Registration Procedures. (a) If and whenever the Company is required to use its best efforts by the provisions of this Agreement to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possibleSecurities:
(ia) Prepare andThe Company will use commercially reasonable efforts to prepare and file with the SEC, in any event within sixty the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (60) calendar days after the end of the period within which requests for or on such other registration may be given form available to the Company (or within ninety (90) days after that permits the end greatest extent of such period if such period ends during the first month or the last month incorporation by reference of materials filed by the Company’s fiscal year, under the Exchange Act), file with the Commission a registration statement with respect to such Registrable Securities and will use its best commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable thereafter and to remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 180 days after such Registration Statement becomes effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected registrations pursuant to Section 6.2 at 2, or (2) 90 days after such Registration Statement becomes effective, in the case of registrations pursuant to Section 3, in every case as any time prior such period may be extended pursuant to the effective date of the registration statement relating theretosubsection (h) or Section 8.
(iib) Prepare The Company will prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a such period of time required by subsection (a), as such period may be requested by the Requesting Holders not exceeding nine extended pursuant to subsection (9h) months and to or Section 8.
(c) The Company will comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Registration Statement during the period during which any such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statementRegistration Statement is required to be effective.
(iiid) Furnish The Company will furnish to each holder any Holder and any underwriter of Registrable Securities covered by the registration statement (1) such number of copies (including manually executed and to each underwriter, if any, conformed copies) of such Registrable Securities Registration Statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (2) such number of copies of a the prospectus used in connection with such Registration Statement (including each preliminary prospectus, any summary prospectus and preliminary the final prospectus for delivery in conformity with the requirements of the Securities Actand including prospectus supplements), and (3) such number of copies of other documents documents, in each case as the Holder or such Person underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securitiesrequest.
(ive) Use its best The Company will use commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities or "blue sky sky" laws of such jurisdictions states of the United States and any other jurisdiction as each seller any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably necessary requested by such Holder or advisable to enable such seller underwriter to consummate the offering and disposition of the Registrable Securities owned by such seller in such jurisdictions, except that ; but the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), wherein it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(vf) Use its best The Company will use, as soon as practicable after the effectiveness of the Registration Statement, commercially reasonable efforts to cause such the Registrable Securities covered by such registration statement Registration Statement to be registered or qualified with with, or approved by by, such other United States and Bermuda public, governmental agencies or authorities (includingregulatory authorities, without limitationif any, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate required in connection with the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vig) Immediately notify each seller of The Company will use commercially reasonable efforts to list the Registrable Securities covered by such registration statementRegistration Statement on any securities exchange (or if applicable, at the Nasdaq National Market System) on which any time securities of the Company are then listed, if the listing of such Registrable Securities is then permitted under the applicable rules of such exchange (or if applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable and, if requested by any Holder, confirm such notification in writing, (1) when a prospectus relating or any prospectus supplement has been filed with the SEC, and when a Registration Statement or any post-effective amendment thereto is required has been filed with and declared effective by the SEC, (2) of the issuance by the SEC of any stop order or the coming to be delivered under its knowledge of the Securities Act within initiation of any proceedings for that purpose, (3) of the appropriate period mentioned in Section 6.3(a)(ii), if receipt by the Company becomes aware of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (4) of the occurrence of any event which requires the making of any changes to a Registration Statement or related prospectus so that the prospectus included in such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existing; use its best efforts to under which they were made, not misleading (and the Company shall promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver each Holder a reasonable number of copies of an a supplemented or amended or supplemental prospectus as may be necessary so such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 therein, in the light of the circumstances then existing.
under which they are made, not misleading), and (vii5) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement 's determination that the filing of the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, a post-effective amendment to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges a Registration Statement shall be acceptable to necessary or appropriate. Upon the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 6.3(a)(viclause (4), the Holders shall forthwith discontinue any offer and disposition of the Registrable Securities pursuant to the registration statement Registration Statement covering such Registrable Securities until such holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreeswhich is no longer defective and, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such information as Registrable Securities which are then in the Holders' possession. If the Company may shall provide any notice of the type referred to in the preceding sentence, the period during which the Registration Statement is required by subsection (a) to be effective shall be extended by the number of days from and including the date such notice is provided, to and including the date when the Holders shall have received copies of the corrected prospectus.
(i) The Company will enter into such agreements and take such other appropriate actions as are customary and reasonably request from necessary to expedite or facilitate the disposition of such holder concerning such holder and its intended method of distribution of Registrable Securities (including, without limitation, making its management available to enable the Company extent reasonably requested by the Holders to include participate in marketing presentations to potential investors in connection with any underwritten offering), and in that regard, will deliver to the Holders such information documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement, including, in the case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement.
(g) It is understood that , or if such letter can not be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company's financial statements included or incorporated by reference in any Underwritten Offering in addition the registration statement at the highest level permitted to any shares of stock (be given by such accountants under the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) then applicable standards of the initial shares (or American Institute of Certified Public Accountants with respect to such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationRegistration Statement.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Exel LTD), Registration Rights Agreement (Xl Capital LTD)
Registration Procedures. (a) If and whenever the Company is ----------------------- required to use its best efforts by the provisions of this Agreement to effect or cause the a registration of any Registrable Securities under the Securities Act as provided in Section 6.1 or 6.2 hereof, the Company will, as expeditiously as possibleSecurities:
(ia) Prepare andThe Company will use commercially reasonable efforts to prepare and file with the SEC, in any event within sixty the time periods specified herein, a Registration Statement on Form S-3 or its equivalent (60) calendar days after the end of the period within which requests for or on such other registration may be given form available to the Company (or within ninety (90) days after that permits the end greatest extent of such period if such period ends during the first month or the last month incorporation by reference of materials filed by the Company’s fiscal year), file with under the Commission a registration statement with respect to such Registrable Securities Exchange Act) and will use its best commercially reasonable efforts to cause such registration statement to become effective as promptly as practicable thereafter and to remain effective under the Securities Act until (1) the earlier of such time as all securities covered thereby have been disposed of pursuant to such Registration Statement or 180 days after such Registration Statement becomes effective; provided that, in the case of a registration provided for in Section 6.1 or 6.2 hereof, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected registrations pursuant to Section 6.2 at 2, or (2) 90 days after such Registration Statement becomes effective, in the case of registrations pursuant to Section 3, in every case as any time prior such period may be extended pursuant to the effective date of the registration statement relating theretosubsection (h) or Section 8.
(iib) Prepare The Company will prepare and file with the Commission SEC such amendments (including amendments, post-effective amendments) amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for a such period of time required by subsection (a), as such period may be requested by the Requesting Holders not exceeding nine extended pursuant to subsection (9h) months and to or Section 8.
(c) The Company will comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement Registration Statement during the period during which any such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statementRegistration Statement is required to be effective.
(iiid) Furnish The Company will furnish to each holder any Holder and any underwriter of Registrable Securities covered by the registration statement (1) such number of copies (including manually executed and to each underwriter, if any, conformed copies) of such Registrable Securities Registration Statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (2) such number of copies of a the prospectus used in connection with such Registration Statement (including each preliminary prospectus, any summary prospectus and preliminary the final prospectus for delivery in conformity with the requirements of the Securities Actand including prospectus supplements), and (3) such number of copies of other documents documents, in each case as the Holder or such Person underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securitiesrequest.
(ive) Use its best The Company will use commercially reasonable efforts to register or qualify such all Registrable Securities covered by such registration statement Registration Statement under such other the securities or "blue sky sky" laws of such jurisdictions states of the United States and any other jurisdiction as each seller any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably necessary requested by such Holder or advisable to enable such seller underwriter to consummate the offering and disposition of the Registrable Securities owned by such seller in such jurisdictions, except that ; but the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), wherein it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(vf) Use its best The Company will use, as soon as practicable after the effectiveness of the Registration Statement, commercially reasonable efforts to cause such the Registrable Securities covered by such registration statement Registration Statement to be registered or qualified with with, or approved by by, such other United States and Cayman Islands public, governmental agencies or authorities (includingregulatory authorities, without limitationif any, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate required in connection with the disposition of such Registrable Securities, subject, however, to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vig) Immediately notify each seller of The Company will use commercially reasonable efforts to list the Registrable Securities covered by such registration statementRegistration Statement on any securities exchange (or if applicable, at the Nasdaq National Market System) on which any time securities of the Company are then listed, if the listing of such Registrable Securities is then permitted under the applicable rules of such exchange (or if applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable and, if requested by any Holder, confirm such notification in writing, (1) when a prospectus relating or any prospectus supplement has been filed with the SEC, and when a Registration Statement or any post-effective amendment thereto is required has been filed with and declared effective by the SEC, (2) of the issuance by the SEC of any stop order or the coming to be delivered under its knowledge of the Securities Act within initiation of any proceedings for that purpose, (3) of the appropriate period mentioned in Section 6.3(a)(ii), if receipt by the Company becomes aware of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (4) of the occurrence of any event which requires the making of any changes to a Registration Statement or related prospectus so that the prospectus included in such registration statement, as then in effect, includes an documents will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in light of the circumstances then existing; use its best efforts to under which they were made, not misleading (and the Company shall promptly prepare and file an appropriate amendment or supplement furnish to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver each Holder a reasonable number of copies of an a supplemented or amended or supplemental prospectus as may be necessary so such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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 therein, in the light of the circumstances then existing.
under which they are made, not misleading), and (vii5) Otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement 's determination that the filing of a post-effective amendment to a Registration Statement is necessary or appropriate. Upon the Company which will satisfy the provisions of Section 11(a) of the Securities Act.
(viii) Use its best efforts in cooperation with the underwriters, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Company.
(ix) In the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters of the type customarily covered by such letters as the Requesting Holders reasonably request in order to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 6.3(a)(viclause (4), the Holders shall forthwith discontinue any offer and disposition of the Registrable Securities pursuant to the registration statement Registration Statement covering such Registrable Securities until such holder’s receipt of the all Holders shall have received copies of the a supplemented or amended prospectus contemplated by Section 6.3(a)(vi).
(c) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, each holder of Registrable Securities agrees, whether or not such holder’s Registrable Securities are included in such registration, not to effect any public sale or distribution, including any sale pursuant to Rule 144 under the Securities Act, of any Registrable Securities or of any security convertible into or exchangeable or exercisable for any Registrable Securities (other than as part of such Underwritten Offering), without the consent of the managing underwriter, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, the Company agreeswhich is no longer defective and, if so required directed by the managing underwriterCompany, not to effect any public sale or distribution of any of its equity or debt securities, as the case may be, or securities convertible into or exchangeable or exercisable for any of such equity or debt securities, as the case may be, during a period commencing seven (7) days before and ending one hundred eighty (180) (or such lesser number as the managing underwriter shall designate) days after the effective date of such registration, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such information as Registrable Securities which are then in the Holders' possession. If the Company may shall provide any notice of the type referred to in the preceding sentence, the period during which the Registration Statement is required by subsection (a) to be effective shall be extended by the number of days from and including the date such notice is provided, to and including the date when the Holders shall have received copies of the corrected prospectus.
(i) The Company will enter into such agreements and take such other appropriate actions as are customary and reasonably request from necessary to expedite or facilitate the disposition of such holder concerning such holder and its intended method of distribution of Registrable Securities (including, without limitation, making its management available to enable the Company extent reasonably requested by the Holders to include participate in marketing presentations to potential investors in connection with any underwritten offering), and in that regard, will deliver to the Holders such information documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement, including, in the case of any underwritten offering, using commercially reasonable efforts to cause its independent accountants to deliver to the managing underwriters an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement.
(g) It is understood that , or if such letter can not be obtained through the exercise of commercially reasonable efforts, cause its independent accountants to deliver to the managing underwriters a comfort letter based on negotiated procedures providing comfort with respect to the Company's financial statements included or incorporated by reference in any Underwritten Offering in addition the registration statement at the highest level permitted to any shares of stock (be given by such accountants under the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) then applicable standards of the initial shares (or American Institute of Certified Public Accountants with respect to such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registrationRegistration Statement.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Registration Rights Agreement (Scottish Annuity & Life Holdings LTD), Registration Rights Agreement (Scottish Annuity & Life Holdings LTD)
Registration Procedures. (a) If and whenever the Company is required to register Registrable Securities, the Company will use its reasonable best efforts to effect or cause such registration to permit the registration sale of any such Registrable Securities under in accordance with the Securities Act Holders, intended plan of distribution thereof (as provided communicated in Section 6.1 or 6.2 hereofwriting to the Company), and pursuant thereto the Company will, will as expeditiously as possible:
(a) (i) Prepare and, in any event within sixty (60A) calendar days after the end of the period within which requests for registration may be given to the Company (or within ninety (90) days after the end of such period if such period ends during the first month or the last month of the Company’s fiscal year), prepare and file with the Commission SEC as soon as practicable (and in any event, subject to the last paragraph of this Section 2, within 45 days after any written request made pursuant to Section 1(a)) a registration statement Form S-3 Registration Statement, or a Form S-1 Registration Statement if the Company is not then eligible to use Form S-3 (or in the last case the successor form), with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement Registration Statement to become effective as soon as possible and remain continuously effective and (B) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the related 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; provided that, in the case of a registration provided for in Section 6.1 either foregoing clause (A) or 6.2 hereofforegoing clause (B), before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the Requesting Holders copies of until all such documents proposed to be filed, which documents will be subject to the timely and reasonable review of such counsel; and provided, further, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 6.2 at any time prior to the effective date of the registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period as may be requested by the Requesting Holders not exceeding nine (9) months and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered by the registration statement and to each underwriter, if any, of such Registrable Securities such number of copies of a prospectus and preliminary prospectus for delivery in conformity with the requirements of the Securities Act, and such other documents as such Person may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such Registrable Securities covered by such Registration Statement have been sold under the Registration Statement or cease to be Registrable Securities, (ii) include in such Registration Statement and/or Prospectus (as the case may be) the names of the Holders who have delivered written notice, and a duly completed selling stockholder questionnaire (in the form provided by the Company) to the Company at least five business days prior to the date that the Registration Statement is first declared effective, that they propose to include Registrable Securities in the Registration Statement as selling securityholders, and (iii) file pursuant to Rule 424(b) under the Securities Act a supplement to the prospectus contained in the registration statement Statement or, if required, file a post-effective amendment to the Registration Statement, in each case, to cover new Holders of Registrable Securities upon at least seven business days prior written notice by such new Holders to such effect and the delivery by such new Holders of duly completed selling stockholder questionnaires (in the form provided by the Company).
(b) [reserved]
(c) deliver to the Holders and the underwriters, if any, without charge, as many copies of each prospectus (and each preliminary prospectus) and any amendments or supplements thereto as such Persons may reasonably request (the Company hereby consenting to the use of each such prospectus (or preliminary prospectus) by the Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such prospectus (or preliminary prospectus).
(d) register or qualify or cooperate with the Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under such other the securities or blue sky laws of such jurisdictions as each seller shall reasonably request, the Holders or underwriters may designate in writing and do any and all other acts and things which may be reasonably anything else necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned covered by such seller in such jurisdictions, except the Registration Statement; provided that the Company shall not for any such purpose be required (A) to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 6.3(a)(iv), where it is not then so qualified, qualified or (B) to subject itself to taxation in any such jurisdiction, or (C) to take any action which would subject it to general or unlimited service of process in any such jurisdiction where it is not then so subject.
(ve) Use its best efforts The Company shall give written notice to cause such the Holders of the Registrable Securities covered included within the coverage of the Registration Statement (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by such registration statement an instruction to be registered suspend the use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or qualified any amendment thereto has been filed with the SEC and when the Registration Statement or approved any post-effective amendment thereto has become effective;
(ii) of any request by such other governmental agencies the SEC for amendments or authorities (including, without limitation, state securities commissions) as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities, subject, however, supplements to the limitations set forth in clauses (A), (B) and (C) of Section 6.3(a)(iv) hereof.
(vi) Immediately notify each seller of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.3(a)(ii), if the Company becomes aware that Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such registration statement, as then purpose; and
(v) of the happening of any event that requires the Company to make changes in effect, includes the Registration Statement or the prospectus in order that the Registration Statement or the prospectus do not contain an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; use its best efforts to prepare and file an appropriate amendment or supplement to such prospectus and to cause such amendment or supplement to become effective; and, at the request of any such seller, deliver a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or nor omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existingunder which they were made, not misleading.
(viif) Otherwise use its best efforts The Company shall make every reasonable effort to comply with all applicable rules and regulations obtain the withdrawal, at the earliest possible time, of any order suspending the effectiveness of the Commission and make generally available to its security holders, in each case as soon as practicable, but not later than ninety (90) calendar days after the close of the period covered thereby (one hundred eighty (180) calendar days in case the period covered corresponds to a fiscal year of the Company), an earnings statement of the Company which will satisfy the provisions of Section 11(a) of the Securities ActRegistration Statement.
(viiig) Use its best efforts The Company shall furnish to each Holder of Registrable Securities included within the coverage of the Registration Statement, without charge, if the Holder so requests in cooperation with writing, at least one copy of the underwritersRegistration Statement and any post-effective amendment thereto, including, but only if expressly requested by such Holder, financial statements and schedules and all exhibits thereto (including those, if any, to list such Registrable Securities on each securities exchange as they may reasonably designate, which securities exchanges shall be acceptable to the Companyincorporated by reference).
(ixh) In The Company shall cooperate with the event the offering is an Underwritten Offering, use its best efforts to obtain a “cold comfort” letter from the independent public accountants for the Company in customary form and covering such matters Holders of the type customarily covered by Registrable Securities to facilitate the timely preparation and delivery of certificates (if any) representing the Registrable Securities to be sold pursuant to the Registration Statement free of any restrictive legends and in such letters denominations and registered in such names as the Requesting Holders reasonably may request in order a reasonable period of time prior to effect an Underwritten Offering of such Registrable Securities.
(x) Execute and deliver all instruments and documents (including in an Underwritten Offering an underwriting agreement in customary form) and take such other actions and obtain such certificates and opinions as the Requesting Holders reasonably request in order to effect an underwritten public offering of such Registrable Securities.
(b) Each holder of Registrable Securities will, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6.3(a)(vi), forthwith discontinue disposition sales of the Registrable Securities pursuant to the registration statement covering such Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 2(e) above, the Company shall promptly prepare and file a post-effective amendment to the Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Registrable Securities until such holder’s receipt or purchasers of Registrable Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders of Registrable Securities included within the coverage of the Registration Statement to suspend the use of the prospectus as a result of any of the events described in paragraphs (ii) through (v) of Section 2(e) above, until (A) the requisite changes to the prospectus have been made and the Holders have received copies of the a supplemented or amended prospectus contemplated or (B) the Holders have been advised in writing by Section 6.3(a)(vi)the Company that the use of the prospectus may be resumed, the Holders shall suspend use of such prospectus.
(cj) If a registration pursuant to Section 6.1 or 6.2 hereof involves an Underwritten Offering, The Company may require each holder Holder of Registrable Securities agreesto be sold pursuant to the Registration Statement to furnish to the Company, whether pursuant to a questionnaire or not otherwise, such holder’s information regarding the Holder and the distribution of the Registrable Securities are included as the Company may from time to time reasonably require for inclusion in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any Holder that fails to furnish such information within the applicable time period specified in this Agreement.
(k) In the case of any registration, not to effect the Company shall (i) make reasonably available for inspection by the Holders of the Registrable Securities, any public sale or distribution, including underwriter participating in any sale disposition pursuant to Rule 144 under the Registration Statement and any attorney, accountant or other agent retained by the Holders of the Registrable Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of the Registrable Securities or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as shall be reasonably necessary to enable such persons, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of Holders by the Investor or by one counsel designated by the Holders.
(l) In the case of any registration, the Company, if requested by any Holder of Registrable Securities or covered thereby in connection with an underwritten offering of any security convertible into or exchangeable or exercisable for any the Registrable Securities pursuant to the Registration Statement, shall cause (other than as part of such Underwritten Offering)i) its counsel (which may include the Company’s general counsel and/or the Company’s outside counsel) to deliver an opinion or opinions and updates thereto relating to the Registrable Securities in customary form addressed to the underwriters thereof and dated, without in the consent case of the managing underwriterinitial opinion, during a period commencing seven (7) days before and ending one hundred eighty (180) days (or such lesser number as the managing underwriter shall designate) after the effective date of such registration.
Registration Statement (d) If a registration pursuant it being agreed that the matters to Section 6.1 or 6.2 involves an Underwritten Offeringbe covered by such opinion shall include, without limitation, the due incorporation and good standing of the Company agreesand its subsidiaries; the qualification of the Company and its subsidiaries to transact business as foreign corporations; the due authorization, if so execution and delivery of the relevant underwriting agreement; the due authorization, execution, authentication and issuance, and the validity and enforceability, of the Registrable Securities; the absence of material legal or governmental proceedings involving the Company and its subsidiaries; the absence of governmental approvals required to be obtained in connection with the Registration Statement, the offering and sale of the Registrable Securities; the compliance as to form of such Registration Statement and any documents incorporated by reference therein with the managing underwriterrequirements of the Securities Act and the Exchange Act; and, not to effect any public sale as of the date of the opinion and as of the effective date of the Registration Statement or distribution of any of its equity or debt securitiesmost recent post-effective amendment thereto, as the case may be, the absence from such Registration Statement and the prospectus included therein, as then amended or supplemented, and from any documents incorporated by reference therein of an untrue statement of a material fact or the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any such documents, in the light of the circumstances existing at the time that such documents were filed with the Commission under the Exchange Act); (ii) its officers to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the Registrable Securities and (iii) its independent public accountants to provide to the underwriter(s) of the Registrable Securities a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(m) The Company shall use its reasonable best efforts to cause the Common Stock included in such Registration Statement to be, upon resale thereunder, listed on each U.S. securities convertible into exchange or exchangeable national quotation system, if any, on which any shares of Common Stock are then listed. Notwithstanding the undertakings in this Section 2, in the event the Board of Directors of the Company in good faith determines that significant corporate developments preclude the filing of a Registration Statement or exercisable for any its being declared effective, the Company may delay the filing or effectiveness of such equity or debt securities, as the case may be, during Registration Statement for a period commencing seven (7) not to exceed 30 days before and ending one hundred eighty (180) (or such lesser number as from the managing underwriter shall designate) days after the effective date of such registrationrequest, except for such Underwritten Offering or except in connection with a stock option plan, stock purchase plan, savings or similar plan, or an acquisition, merger or exchange offer.
(e) If a registration pursuant after giving notice to Section 6.1 or 6.2 involves an Underwritten Offering, any holder of Registrable Securities requesting to be included in such registration may elect, in writing, prior to the effective date of the registration statement filed in connection with such registration, not to register such securities in connection with such registration, unless such holder has agreed with the Company or the managing underwriter to limit its right under this Section 6.3.
(f) In any registration pursuant to Section 6.1 or 6.2, each holder of Registrable Securities requesting to be included in such registration shall furnish to the Company all such information as the Company may reasonably request from such holder concerning such holder and its intended method of distribution Holder of Registrable Securities to enable the Company to include be covered by such information in the registration statementRegistration Statement.
(g) It is understood that in any Underwritten Offering in addition to any shares of stock (the “initial shares”) the underwriters have committed to purchase, the underwriting agreement may grant the underwriters an option to purchase up to a number of additional shares of stock (the “option shares”) equal to fifteen percent (15%) of the initial shares (or such other maximum amount as the National Association of Securities Dealers, Inc. may then permit), solely to cover over-allotments. Shares of stock proposed to be sold by the Company and the other sellers shall be allocated between initial shares and option shares as agreed or, in the absence of agreement, on a pro rata basis among all such holders on the basis of the relative number of shares of Registrable Securities each such holder has requested to be included in such registration.
(h) Notwithstanding anything to the contrary herein, the Company shall not be required to include any Registrable Securities of any holder in the event that the Company shall obtain an opinion of its counsel that all such requested Registrable Securities may then be sold without registration under Rule 144 or other provision of the Securities Act.
Appears in 2 contracts
Sources: Investor Rights Agreement (Transmeridian Exploration Inc), Investor Rights Agreement (Transmeridian Exploration Inc)