Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible: (a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object; (b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable; (c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment; (e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto; (h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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; (i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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; (j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities; (k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading; (l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any; (m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company; (n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder; (o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order; (p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and (q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 4 contracts
Sources: Registration Rights Agreement (Regent Assisted Living Inc), Registration Rights Agreement (Regent Assisted Living Inc), Registration Rights Agreement (Regent Assisted Living Inc)
Registration Procedures. (a) In connection with the Company's registration obligations Registration and/or sale of Registrable Securities pursuant to Section 3 hereofthis Agreement, through an Underwritten Offering or otherwise, the Company will shall use its reasonable best efforts to effect such registration to permit or cause the Registration and the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibledisposition thereof and:
(ai) prepare and file with the SECrequired Registration Statement, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form including all exhibits and financial statements required under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC Act to be filed therewith, cooperate and assist in any filings required to be made before filing with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing SEC a Registration Statement or Prospectus Prospectus, or any amendments or supplements thereto, the Company will (A) furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, and to the Holders participating in such Registration, copies of all such documents proposed prepared to be filed, which documents will be subject to the reasonable review of such holders underwriters and underwriterssuch participating Holders and their respective counsel, and the Company will not file (B) consider in good faith any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority comments of the Registrable Securities covered by underwriters and Holders and their respective counsel on such Registration Statement or the underwriters, if any, shall reasonably objectdocuments;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for in accordance with the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus terms of this Agreement and 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 with respect to the disposition of all securities covered by of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such Registration Statement during and the applicable period Prospectus used in accordance with the intended method or methods of distribution by the sellers thereof set forth in connection therewith as may be necessary to keep such Registration Statement or supplement effective and to comply with the provisions of the Securities Act with respect to the Prospectus; disposition of all Shares subject thereto for a period ending on the Company shall not be deemed to have used its best efforts to keep a 3rd anniversary after the effective date of such Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(civ) notify the selling holders of Registrable Securities participating Holders and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personrequested) confirm such advice in writingwriting and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (1A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to the such Registration Statement or the such Prospectus or for additional information, (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the 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 that purposesuch purposes, (4D) if if, at any time time, the representations and warranties of the Company contemplated by paragraph (o) below in any applicable underwriting agreement cease to be true and correctcorrect in all material respects, and (5E) 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 purpose;
(v) promptly notify each selling Holder and (6) the managing underwriter or underwriters, if any, when the Company becomes aware of the happening occurrence of any event as a result of which makes any statement made in the applicable Registration Statement, Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact 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 in order 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 misleadingmisleading 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;
(dvi) make every use its reasonable effort best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the effectiveness use of the Registration Statement at the earliest possible momentany preliminary or final Prospectus;
(evii) if 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 underwriters underwriters, if any, and the holders Holders may reasonably request to be included therein in order to permit the intended method of a majority distribution 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 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;
(fviii) furnish to each selling holder of Registrable Securities Holder and each managing underwriter, if any, without charge, at least one signed copy 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);
(gix) deliver to each selling holder of Registrable Securities Holder and the underwriterseach underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary prospectusProspectus) and any amendment or supplement thereto as such Persons Holder or underwriter may reasonably request; request (it being understood that the Company consents to the use of the such Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(hx) on or prior to any public offering of Registrable Securitiesthe date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify or qualify, and cooperate with the each selling holders of Registrable SecuritiesHolder, the managing underwriter or underwriters, if any, and their respective counsel counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky sky” laws of such jurisdictions each state and other jurisdiction of the United States as any seller selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts or things reasonably necessary or advisable to enable keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to 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 covered by the 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(ixi) cooperate in connection with the selling holders 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 enable to register such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the managing underwriters underwriter(s), if any, may request at least two business days Business Days prior to any such sale of Registrable Securities to Securities; provided that the underwritersCompany may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(jxii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if any, on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’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 the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(mxiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(nxiv) enter into such agreements (including in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter or underwriters, an opinion from the Company’s outside counsel in customary form and content for the type of Underwritten Offering, dated the date of the closing under the underwriting agreement;
(xv) in the case of an Underwritten Offering, obtain for delivery to and take all such other actions addressed to the underwriter or underwriters and, to the extent agreed by the Company’s independent certified public accountants, each selling Holder, a comfort letter from the Company’s independent certified public accountants (and the independent certified public accountants with respect to any acquired company financial statements) in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection therewith in order with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to expedite or facilitate the disposition closing under the underwriting agreement;
(xvi) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable, but no later than 90 days after the end of the 12-month period beginning with the first day of the Company’s first quarter commencing after the effective date of the applicable Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder and covering the period of at least 12 months, but not more than 18 months, beginning with the first month after the effective date of the Registration Statement;
(xvii) 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;
(xviii) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s Common Stock are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s Common Stock are then quoted, including the filing of any required supplemental listing application;
(xix) provide (A) each Holder participating in such connectionthe Registration, whether or not (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriting agreement is entered into and whether or not underwriter within the registration is an underwritten registration (1meaning of Section 2(11) make such representations and warranties to of the holders of such Registrable Securities and the underwritersAct), if any, in formof the Registrable Securities to be Registered, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in (C) the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriterssale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and the holders of a majority of the Registrable Securities being sold(E) addressed to each selling holder and the underwritersany attorney, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such accountant or other matters as may be reasonably requested agent or representative retained by such holders Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and underwriters; (3) obtain "cold comfort" letters each amendment or supplement thereto, and updates thereof from to require the Company's independent certified public accountants addressed insertion therein of material, furnished to the selling holders Company in writing, which in the reasonable judgment of Registrable Securities such Holder(s) and the underwriters, if any, such letters to their counsel should be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Sectionincluded; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of for a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and reasonable period prior to the extent required thereunder;
(o) filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating parties referred to in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter(A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Company, and cause the Company's ’s officers, directors employees and employees the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such representative, underwriter, attorney or accountant Person in connection with such registration; Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any recordssuch Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix) shall agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (x) the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents that are designated by a governmental entity, subpoena or similar process, (y) such information is or becomes publicly known without a breach of this Agreement, (F) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company in writing as confidential shall be kept confidential or (z) such information is independently developed by such Persons unless disclosure of such records, information or documents is required by court or administrative orderPerson;
(pxx) otherwise use its best efforts to comply with all applicable rules and regulations cause the executive officers of the SECCompany to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter participate in which Registrable Securities are sold to underwriters in a firm or best each proposed offering contemplated herein and customary selling efforts underwritten offering, or (2) 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 12-month periodsrelated thereto; and
(qxxi) promptly prior take all other customary steps reasonably necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration Statement)hereunder, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities Holder as to which any registration 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, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each holder such Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of Registrable Securities agrees by acquisition of such Registrable Securities this Agreement.
(c) Each Holder agrees, that, upon receipt of any written notice from the Company of the happening occurrence of any event of the kind described in Section 6(k) hereof2.04(a)(v), such holder Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such holder's Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof2.04(a)(v), or until it such Holder is advised in writing (the "Advice") 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 Holder will deliver to the Company (at the Company's ’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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.th
Appears in 4 contracts
Sources: Registration Rights Agreement (Pactiv Evergreen Inc.), Registration Rights Agreement (Pactiv Evergreen Inc.), Registration Rights Agreement (Reynolds Consumer Products Inc.)
Registration Procedures. In connection with the CompanyIssuer's and Guarantors' registration obligations pursuant to Section 3 hereofhereunder, the Company will use its best efforts to Issuer and Guarantors shall effect such registration to permit registrations on the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities Notes, the Exchange Notes or Private Exchange Notes, as applicable, to (i) in the case of the Exchange Offer, permit the exchange of Exchange Notes for Notes in the Exchange Offer and, if applicable, resales of Exchange Notes by Participating Broker-Dealers and (ii) in the case of a Shelf Registration, permit the sale of the applicable Transfer Restricted Notes in accordance with the intended method or methods of distribution disposition thereof and shall include all financial statements required specified by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDholders of such Transfer Restricted Notes, and use best efforts pursuant thereto each of the Issuer and Guarantors shall:
(a) in the case of a Shelf Registration, a reasonable period of time prior to cause such Registration Statement to become effective; provided that before the initial filing or submission of a Shelf Registration Statement or Prospectus and a reasonable period of time prior to the filing or submission of any amendments amendment or supplements theretosupplement thereto (excluding exhibits and any document that would be incorporated or deemed to be incorporated therein by reference unless reasonably requested), the Company will furnish to the holders of the Registrable Securities covered by Transfer Restricted Notes included in such Shelf Registration Statement Statement, their Special Counsel and the managing underwriters, if any, copies of all such documents proposed to be filedfiled or submitted, which documents will be subject to the reasonable review of such holders holders, their Special Counsel and such underwriters, if any, and cause the officers and directors of the Issuer and the Company will Guarantors, counsel to the Issuer and the Guarantors and independent certified public accountants to the Issuer and the Guarantors to respond to such reasonable inquiries as shall be necessary, in the opinion of Special Counsel, to conduct a reasonable investigation within the meaning of the Securities Act; provided that the foregoing inspection and information gathering shall be conducted by the Initial Purchasers and, on behalf of the Initial Purchasers and any other persons, by Special Counsel. The Issuer and Guarantors shall not file any such Shelf Registration Statement or amendment thereto or any related Prospectus or any supplement amendments or supplements thereto to which the holders of a majority in principal amount of the Registrable Securities covered by Transfer Restricted Notes included in such Shelf Registration Statement or the underwriters, if any, shall reasonably objectobject within five Business Days after receipt thereof;
(b) prepare and file with the SEC Commission such amendments and amendments, including post-effective amendments amendments, to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter time period which will terminate when all Registrable Securities covered by such Registration Statement have been soldrequired hereunder; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act424; and 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 the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablesupplemented;
(c) notify the selling holders of Registrable Securities Transfer Restricted Notes to be sold or, in the case of an Exchange Offer, tendered, and their Special Counsel and the managing underwriters, if any, promptly, promptly and (if requested by any such Personperson) confirm such advice notice in writing, (1i)(A) when a Prospectus in the Prospectus case of the Shelf Registration or any Prospectus supplement or post-effective amendment has been in the case of any Registration Statement is filed, and, and (B) with respect to the a Registration Statement in the case of the Shelf Registration or any post-effective amendmentamendment in the case of any Registration Statement, when the same has become effective, (2ii) at any time in the case of a Shelf Registration and following effectiveness in the case of the Exchange Offer Registration Statement of any request by the SEC Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission Commission, any state securities commission, any other governmental agency or any court of any stop order or injunction suspending or enjoining the use of a Prospectus or the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company Issuer or the Guarantors of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities Notes, Exchange Notes or Private Exchange Notes for sale in any jurisdiction jurisdiction, or the initiation or threatening threat of any proceeding for such purpose purpose, and (6v) following effectiveness of a Registration Statement of the happening occurrence of any event which or information becoming known to the Issuer or the Guarantors that makes any statement made in the a Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes change in the such Registration Statement, the Prospectus or documents so that it or they will not contain any document incorporated untrue statement of a material fact or omit to state any material fact required to be stated therein by reference in order or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(d) make every use its reasonable effort best efforts to avoid the issuance of or, if issued, to obtain the withdrawal of any order enjoining or suspending the use of a Prospectus or the effectiveness of the a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Notes, Exchange Notes or Private Exchange Notes for sale in any jurisdiction, at the earliest possible momentpracticable time;
(e) if a Shelf Registration Statement is filed pursuant to Section 3 hereof and if requested by the managing underwriter underwriters, if any, or underwriters or the holders of a holder majority in aggregate principal amount of Registrable Securities the Transfer Restricted Notes being sold in connection with an underwritten offeringpursuant to such Shelf Registration Statement, (i) promptly incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and the such holders of a majority of the Registrable Securities being sold agree should reasonably request to be included therein relating to the plan of distribution with respect to such Registrable Securitiestherein, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus prospectus supplement or such post-effective amendment under the Securities Act as soon as notified practicable after the Issuer has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Issuer shall not be required to take any action pursuant to this Section 5(e) that would, in the opinion of counsel for the Issuer, violate applicable law;
(f) furnish in the case of a Shelf Registration, upon written request to each selling the Issuer by a holder of Registrable Securities and Notes to be sold, or upon request of the Special Counsel or each managing underwriter, if any, the Issuer shall furnish, without charge, at least one signed conformed copy of the such Registration Statement and any post-effective each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits to the extent requested (including those previously furnished or incorporated by reference)) as soon as reasonably practicable after the filing of such documents with the Commission;
(g) deliver to each selling Participating Broker-Dealer in the case of the Exchange Offer and, in the case of a Shelf Registration, each holder of Registrable Securities Notes, Exchange Notes or Private Exchange Notes to be sold pursuant thereto, the Special Counsel, and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary form of prospectus) and any each amendment or supplement thereto as such Persons may person reasonably requestrequests; and each of the Company Issuer and the Guarantors hereby consents (subject to the last paragraph of this Section 5) to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities Transfer Restricted Notes and the underwriters, if any, in connection with the offering and sale of the Registrable Securities Transfer Restricted Notes covered by the such Prospectus or and any amendment or supplement theretothereto in accordance with the terms thereof and with U.S. federal securities laws and blue sky laws; provided that such use of such Prospectus and any amendment or supplement thereto and such offering and sale conforms to the plan of distribution set forth in the Prospectus and complies with the terms of this Agreement and the Securities Act and the regulations thereunder;
(h) prior to any public offering of Registrable SecuritiesNotes, Exchange Notes or Private Exchange Notes, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable SecuritiesNotes, Exchange Notes or Private Exchange Notes to be sold or tendered, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities Notes, Exchange Notes or Private Exchange Notes for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any seller such holders or underwriter underwriters reasonably requests request in writing writing; keep each such registration or qualification (or exemption therefrom) effective during the period the applicable Registration Statement is required to be kept effective hereunder and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities Notes, Exchange Notes or Private Exchange Notes covered by the applicable Registration Statement; provided provided, however, that neither the Company will not Issuer nor the Guarantors shall be required to (i) register or qualify generally to do business in any jurisdiction where it is not then so registered or qualified or to (ii) take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is they are not then so subject;
(i) in connection with any sale or transfer of Transfer Restricted Notes that will result in such securities no longer being Transfer Restricted Notes, cooperate with the selling holders of Registrable Securities thereof and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities Transfer Restricted Notes to be sold and sold, which certificates shall not bearing bear any restrictive legends; legends and shall be in a form eligible for deposit with the Depositary (as defined in the Indenture) as the case may be, and to enable such Registrable Securities Transfer Restricted Notes 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, or such holders may reasonably request at least two Business Days prior to consummate the disposition such sale of such Registrable SecuritiesTransfer Restricted Notes;
(kj) upon the occurrence of any event contemplated by paragraph (c)(6Section 5(c)(v) abovehereof, as promptly as practicable, prepare a supplement or posteffective amendment amendment, including, if appropriate, a post-effective amendment, to the each Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or reference, and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securitiesdelivered, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(k) prior to the effective date of the Exchange Registration Statement, to provide a CUSIP number for the Exchange Notes (and Private Exchange Notes, if applicable);
(l) cause all Registrable Securities covered by the if a Shelf Registration Statement is filed pursuant to be listed on each securities exchange on which similar securities issued by the Company are then listed Section 3 hereof, and if requested by the holders of a majority of such Registrable Securities or the managing underwritersTransfer Restricted Notes covered thereby, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreementagreement in form, scope and substance as is customary in underwritten offerings) and take all such other reasonable customary actions in connection therewith (including those reasonably requested by the managing underwriters, if any, or the holders of a majority in aggregate principal amount of the Transfer Restricted Notes being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionTransfer Restricted Notes, and, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration, (1i) make such representations and warranties to the holders of such Registrable Securities Transfer Restricted Notes and the underwriters, if any, with respect to the business of the Issuer, the Guarantors and their subsidiaries (including with respect to businesses or assets acquired or to be acquired by any of them), and the Shelf Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings offerings, and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame on a quarterly basis; (2ii) obtain opinions of counsel to the Company Issuer and the Guarantors dated the date of effectiveness and annual updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and Special Counsel to the holders of a majority of the Registrable Securities Transfer Restricted Notes being sold) ), addressed to each selling holder of Transfer Restricted Notes and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings delivered pursuant to Sections 7(a) and 7(b) of the Purchase Agreement and such other matters as may be reasonably requested by such holders Special Counsel and the managing underwriters, if any, and which are customary; (3iii) use their reasonable best efforts to obtain customary "cold comfort" letters dated the date of effectiveness and quarterly updates thereof from the Company's independent certified public accountants of the Issuer and the Guarantors (and, if necessary, any other independent certified public accountants of any subsidiary of the Issuer or Guarantors or of any business acquired by the Issuer or Guarantors or any such subsidiary for which financial statements and financial data is, or is required to be, included in the Shelf Registration Statement), addressed (where reasonably possible) to the each selling holders holder of Registrable Securities Transfer Restricted Notes and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4iv) if an underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures substantially the same as those set forth in the Purchase Agreement (or such other provisions and procedures acceptable to the Issuer, holders of Section 8 hereof with respect to all parties to be indemnified pursuant to said Sectiona majority in aggregate principal amount of Transfer Restricted Notes covered by such Shelf Registration Statement and the managing underwriters, if any); and (5v) the Company shall deliver such other customary documents and certificates as may be reasonably requested by the holders of a majority in aggregate principal amount of the Registrable Securities Transfer Restricted Notes being sold sold, their Special Counsel and the managing underwriters, if any, to evidence compliance with the continued validity of the representations and warranties made pursuant to clause (ki) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting Issuer or similar agreement or as and to the extent required thereunderGuarantors;
(om) in the case of a Shelf Registration, make available at reasonable times for inspection by a representative of the holders of a majority of the Registrable SecuritiesTransfer Restricted Notes being sold, any underwriter participating in any such disposition pursuant to such registrationof Transfer Restricted Notes, and any attorney attorney, consultant or accountant retained by the sellers such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all relevant financial and other records, pertinent corporate documents and properties of the CompanyIssuer and Guarantors and their subsidiaries (including with respect to businesses and assets acquired or to be acquired to the extent that such information is available to the Issuer or the Guarantors), and cause the Company's officers, directors directors, agents and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, Issuer and make generally available Guarantors and their subsidiaries (including with respect to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (businesses and assets acquired or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior be acquired to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company extent 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.s
Appears in 4 contracts
Sources: Registration Rights Agreement (Bluewater Offshore Production Systems Usa Inc), Registration Rights Agreement (Bluewater Offshore Production Systems Usa Inc), Purchase Agreement (Bluewater Offshore Production Systems Usa Inc)
Registration Procedures. In connection with the Company's registration obligations Whenever Shareholders request that any Registrable Securities be registered pursuant to Section 3 hereof5.01 or 5.02, subject to the provisions of such Sections, the Company will shall use its reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as quickly as practicable, and pursuant thereto the Company will as expeditiously as possibleand, in connection with any such request:
(a) The Company shall as expeditiously as possible prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate form under the Securities Act, and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective; provided that before and remain effective for a period of not less than 180 days, or in the case of a shelf registration statement, one year (or such shorter period in which all of the Registrable Securities of the Registering Shareholders included in such registration statement shall have actually been sold thereunder).
(b) Prior to filing a Registration Statement registration statement or Prospectus prospectus or any amendments amendment or supplements supplement thereto, the Company will shall, if requested, furnish to the holders each participating Shareholder and each underwriter, if any, of the Registrable Securities covered by such Registration Statement and the underwriters, if any, registration statement copies of all such documents registration statement as proposed to be filed, which documents will be subject and thereafter the Company shall furnish to the reasonable review such Shareholder and underwriter, if any, such number of copies of such holders registration statement, each amendment and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as such Shareholder or underwriter may reasonably request in order to which facilitate the holders of a majority disposition of the Registrable Securities covered owned by such Registration Statement Shareholder. Each Shareholder shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to such Shareholder and the Company shall use its reasonable best efforts to comply with such request, provided that the Company shall not have any obligation so to modify any information if the Company reasonably expects that so doing would cause the prospectus to 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 underwriters, if any, shall reasonably object;statements therein not misleading.
(bc) prepare and file with After the SEC such amendments and post-effective amendments to filing of the Registration Statement as may be necessary to keep registration statement, the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; Company shall (i) cause the Prospectus related prospectus to be supplemented by any required Prospectus prospectus supplement, and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and , (ii) 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 the applicable period in accordance with the intended method or methods of distribution disposition by the sellers Registering Shareholders thereof set forth in such Registration Statement registration statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the such prospectus and (iii) promptly notify each Registering Shareholder holding Registrable Securities covered thereby not being able to sell by such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission registration statement of any stop order suspending the effectiveness of the Registration Statement issued or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt threatened by the Company 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus SEC or any document incorporated therein by reference untrue state securities commission and take all reasonable actions required to prevent the entry of such stop order or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;remove it if entered.
(d) make every The Company shall use its reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittento (i) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement register or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of qualify the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the such registration or qualification of statement under such Registrable Securities for offer and sale under the other securities or “blue sky sky” laws of such jurisdictions in the United States as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable Registering Shareholder holding such Registrable Securities to be reasonably (in light of such denominations Shareholder’s intended plan of distribution) requests and registered in (ii) cause such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the seller or sellers thereof or the underwriters, if any, such Shareholder to consummate the disposition of the Registrable Securities owned by such Shareholder, provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5.04(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(e) The Company shall immediately notify each Registering Shareholder holding such Registrable Securities;
(k) upon Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any an event contemplated by paragraph (c)(6) above, prepare requiring the preparation of a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;misleading and promptly prepare and make available to each such Shareholder and file with the SEC any such supplement or amendment.
(li) cause all Registrable Securities covered The Institutional Shareholders shall have the right, in their sole discretion, to select an underwriter or underwriters in connection with any Public Offering resulting from the exercise by the Institutional Shareholders of a Demand Registration Statement to be listed on each securities exchange on which similar securities issued by underwriter or underwriters may include an Affiliate of an Institutional Shareholder and (ii) the Company are then listed if requested by shall select an underwriter or underwriters in connection with any other Public Offering. In connection with any Public Offering, the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) Company shall enter into such customary agreements (including an underwriting agreementagreement in customary form) and take such all such other actions in connection therewith as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering, including the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwritersCompany, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any Registering Shareholder and any underwriter participating in any disposition pursuant to such registration, a registration statement being filed by the Company pursuant to this Section 5.04 and any attorney attorney, accountant or accountant other professional retained by any such Shareholder or underwriter (collectively, the sellers or underwriter“Inspectors”), all financial and other records, pertinent corporate documents and properties of the CompanyCompany (collectively, the “Records”) as shall be reasonably necessary or desirable to enable them to exercise their due diligence responsibility, and cause the Company's ’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant Inspectors in connection with such registration; provided registration statement. Records that any recordsthe Company determines, information or documents in good faith, to be confidential and that it notifies the Inspectors are designated confidential shall not be disclosed by the Company in writing as confidential shall be kept confidential by such Persons Inspectors unless (i) the disclosure of such recordsRecords is necessary to avoid or correct a misstatement or omission 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. Each Registering Shareholder agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it or its Affiliates as the basis for any market transactions in the Company Securities unless and until such information is made generally available to the public. Each Registering Shareholder further agrees that, information or documents upon learning that disclosure of such Records is required by sought in a court or administrative order;of competent jurisdiction, it shall give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(ph) The Company shall furnish to each Registering Shareholder and to each such underwriter, if any, a signed counterpart, addressed to such Shareholder or underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the kind customarily covered by opinions or comfort letters, as the case may be, as a majority of such Shareholders or the managing underwriter therefor reasonably requests.
(i) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement or such other document covering a period of twelve months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; andAct and Rule 158 thereunder.
(qj) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected such Registering Shareholder promptly to furnish in writing to the Company such information regarding the distribution of such securities the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in writing. connection with such registration.
(k) Each holder of Registrable Securities such Registering Shareholder agrees 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(k) hereof5.04(e), such holder will Shareholder shall forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder's Shareholder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 Prospectus5.04(e), and, if so directed by the Company, such holder will Shareholder shall deliver to the Company (at the Company's expense) all copies, other than any permanent file copies then in such holder's Shareholder’s possession, of the Prospectus most recent prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event If the Company shall give any such notice, the time periods regarding Company shall extend the maintenance of period during which such Registration Statement registration statement shall be extended maintained effective (including the period referred to in Section 5.04(a)) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(65.04(e) hereof to and including the date when each seller the Company shall make available to such Shareholder a prospectus supplemented or amended to conform with the requirements of Section 5.04(e).
(l) The Company shall use its reasonable best efforts to list all Registrable Securities covered by such Registration Statement registration statement on any securities exchange or quotation system on which any of the Registrable Securities are then listed or traded.
(m) The Company shall have received the copies appropriate officers of the supplemented Company (i) prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii) take other actions to obtain ratings for any Registrable Securities and (iii) otherwise use their reasonable best efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or amended prospectus contemplated selling of the Registrable Securities.
(n) The Company will provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by Section 6(k) hereof or a registration statement from and after a date not later than the Adviceeffective date of such registration statement.
Appears in 4 contracts
Sources: Shareholder Agreement, Shareholders Agreement (Ntelos Holdings Corp), Shareholders Agreement (Ntelos Holdings Corp)
Registration Procedures. In connection with any registration of Registrable Interests under the Company's registration obligations Securities Act pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts consult with each Equityholder whose equity interest is to effect be included in any such registration concerning the form of underwriting agreement, shall provide to permit such Equityholder the form of underwriting agreement prior to the Company's execution thereof and shall provide to such Equityholder and its representatives such other documents (including comments by the Commission on the Registration Statement) as such Equityholder shall reasonably request in connection with its participation in such registration. The Company will furnish each Equityholder whose Registrable Interests are registered thereunder and each underwriter, if any, with a copy of the Registration Statement and all amendments thereto and will supply each such Equityholder and each underwriter, if any, with copies of any prospectus included therein (including a preliminary prospectus and all amendments and supplements thereto), in such quantities as may be reasonably necessary for the purposes of the proposed sale or distribution covered by such registration. The Company shall not, however, be required to maintain the Registration Statement effective or to supply copies of a prospectus for a period beyond ninety (90) days after the effective date of such Registrable Securities in accordance Registration Statement (or such longer period as is otherwise set forth herein or agreed to by the Company) and, at the end of such period, the Company may deregister any securities covered by such Registration Statement and not then sold or distributed. In the event that the Company prepares and files with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements registration statement on any appropriate form under the Securities Act, which form shall be available Act (a "REGISTRATION STATEMENT") providing for the sale of Registrable Interests held by any Equityholder pursuant to its obligations under this Section 8, the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before Company will:
(i) upon filing a Registration Statement or Prospectus any prospectus related thereto (a "PROSPECTUS") or any amendments or supplements thereto, the Company will furnish to the holders of the Equityholders whose Registrable Securities Interests are covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectdocuments;
(bii) prepare and file with the SEC Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter ninety (90) day period which will terminate when all Registrable Securities covered by such Registration Statement have been soldreferenced in Section 8(e); cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and and, comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the such Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(ciii) promptly notify the selling holders of Registrable Securities Equityholders and the managing underwriters, if any, promptly, and (if requested by any such PersonPerson or entity) confirm such advice in writing, (1A) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any request by the SEC Commission or any state securities commission for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3C) of the issuance by the Commission or any state securities commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities Interests for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose purpose, and (6E) of the happening existence of any event fact which makes any statement made results in the a Registration Statement, the a Prospectus or any document incorporated therein by reference containing an untrue statement of a material fact or which requires the making of any changes in the Registration Statement, the Prospectus omitting to state a material fact required to be stated therein or any document incorporated therein by reference in order necessary to make the statements therein not misleading;
(div) make every use its commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible momentStatement;
(ev) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringEquityholder, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and or the holders of Equityholders holding a majority of the Registrable Securities Interests being sold by Equityholders agree should be included therein relating to the plan sale of distribution with respect to such Registrable SecuritiesInterests, including, including without limitation, limitation information with respect to the number amount of Registrable Securities Interests being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities Interests to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fvi) furnish to each selling holder of Registrable Securities such Equityholder and each managing underwriter, without charge, underwriter at least one signed copy of the 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);
(gvii) deliver to each selling holder of Registrable Securities such Equityholders and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons or entities may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hviii) prior to any public offering Public Sale of Registrable SecuritiesInterests, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration cause to be registered or qualification of qualified such Registrable Securities Interests for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any seller Equityholder or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities Interests covered by the applicable Registration Statement; provided provided, however, 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 or taxation in any such jurisdiction where it is not then so subject;
(iix) cooperate with the selling holders of Registrable Securities Equityholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities Interests to be sold pursuant to such Registration Statement and not bearing any restrictive legends; , and enable such Registrable Securities Interests to be in such denominations and registered in such names as the managing underwriters may request at least two business days Business Days prior to any sale of Registrable Securities Interests to the underwriters;
(jx) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
any fact described in clause (kiii)(E) upon the occurrence of any event contemplated by paragraph (c)(6) aboveabove exists, prepare a supplement or posteffective post-effective amendment to the applicable Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesInterests being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lxi) cause all Registrable Securities Interests covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(mxii) provide and cause to be maintained a transfer agent and registrar for all such Registrable Interests covered by such registration statement not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(nxiii) enter into obtain an opinion from the Company's counsel and a "cold comfort" letter from the Company's independent public accountants in customary form and covering such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope matters as are customarily made covered by issuers such opinions and "cold comfort" letters delivered to underwriters in primary underwritten offerings public offerings, which opinion and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) letter shall be reasonably satisfactory to the managing underwritersunderwriter, if any, and to the holders of Equityholders owning a majority in interest of the Registrable Securities Interests being sold) addressed registered in such offering, and furnish to each selling holder Equityholder participating in the offering and the underwritersto each underwriter, if any, covering the matters customarily covered in opinions requested in underwritten offerings a copy of such opinion and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants letter addressed to such Equityholder or underwriter;
(xiv) deliver promptly to each Equityholder participating in the selling holders of Registrable Securities offering and the underwriterseach underwriter, if any, such letters copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to be in customary form and covering matters of discussions with the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof Commission or its staff with respect to all parties the Registration Statement, other than those portions of any such correspondence and memoranda which contain information subject to be indemnified pursuant attorney-client privilege with respect to said Section; and (5) the Company, and, upon receipt of such confidentiality agreements as the Company shall deliver may reasonably request, make reasonably available for inspection by any seller of such documents and certificates as may be requested Registrable Interests covered by the holders of a majority of the Registrable Securities being sold and the managing underwriterssuch Registration Statement, by any underwriter, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition to be effected pursuant to such registrationregistration statement and by any attorney, and any attorney accountant or accountant other agent retained by the sellers 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;
(xv) provide a CUSIP number for all Registrable Interests included in such Registration Statement, not later than the effective date of the applicable Registration Statement;
(xvi) enter into such agreements (including an underwriting agreement in form reasonably satisfactory to the Company) and take all such other reasonable actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Interests;
(xvii) make available for inspection by a representative of the Equityholders the Registrable Interests being sold pursuant to such Registration Statement, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by such Equityholders or underwriter, all financial and other records, any pertinent corporate documents and properties of the Company reasonably requested by such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons or entities unless disclosure of such records, information or documents is required by court or administrative order;
(pxviii) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SECCommission and relevant state securities commissions, and make generally available to its security holders, earnings the Equityholders earning statements satisfying the provisions of Section 11(a12(a) of the Securities Act, Act no later than 45 forty-five (45) days after the end of any 12-month period (or 90 one-hundred and twenty (120) days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are Interests of such Equityholder is sold to underwriters in a firm or best efforts an underwritten offering, or (2) or, 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 a Registration Statement, which statements shall cover said 12-month periods; and
(qxix) promptly prior take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition disposition 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceInterests.
Appears in 3 contracts
Sources: Equityholders Agreement (Dex Media West LLC), Equityholders Agreement (Dex Media Inc), Equityholders Agreement (Dex Media International Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant of the Company with respect to the Registration Statements contemplated by Section 3 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicablewithin the time period set forth in Section 3 hereof, a the Registration Statement or Statements, which Registration Statements on any appropriate form under the Securities Act, which form shall (i) be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by the selling Holders thereof and shall (ii) 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, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments furnish to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders each Holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment that has been filed, and, with respect delivered a Registration Notice to the Registration Statement Company or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements otherwise is entitled to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the have its Registrable Securities for sale included in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the a 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the each Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably requestin order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Prospectus or and any amendment or supplement thereto by each of the selling holders such Holder of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hc) prior use its reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale by the time any Registration Statement is declared effective by the SEC under the all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions Holder of the Registrable Securities covered by the Registration StatementStatement shall reasonably request in writing, keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective or during the period offers or sales are being made by a Holder that has delivered a Registration Notice to the Company, whichever is shorter; provided provided, however, that in connection therewith, the Company will shall not be required to (i) qualify generally as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it is would not then so qualified otherwise be required to qualify or register but for this Section 4(c), (ii) subject itself to take taxation in any action which would subject it such jurisdiction, or (iii) file a general consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(id) furnish to each Holder of Registrable Securities that has delivered a Registration Notice to the Company or is otherwise entitled to have its Registrable Securities included in a Registration Statement, without charge, at least one conformed copy of the Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(e) cooperate with the selling holders Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legendsSecurities Act legend; and enable certificates for such Registrable Securities to be in issued for such denominations numbers of shares and registered in such names as the managing underwriters selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(of) make available for inspection by the Holders of Registrable Securities that have provided a representative of Registration Notice to the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Company and any attorney counsel, accountants or accountant other representatives retained by the sellers or underwriter, such Holders all financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by any such representativeHolders, underwritercounsel, attorney accountants or accountant representatives in connection with the Registration Statement; provided, however, that such registration; provided that any records, documents or information which the Company determines in good faith to be confidential and notifies such Holders, counsel, accountants or representatives in writing that such records, documents that or information are designated confidential shall not be disclosed by such Holders, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(g) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or automated quotation or other trading system on which similar securities issued by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information are then listed or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periodstraded; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller Holder of Registrable Securities as to which any registration is being effected to furnish to the Company in writing such information regarding the proposed distribution by such Holder of such securities Registrable Securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 3 contracts
Sources: Registration Rights and Lock Up Agreement (Jensen Ronald L), Registration Rights and Lock Up Agreement (Jensen Gladys), Registration Rights and Lock Up Agreement (Jensen Gladys)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Section 3 hereofthe provisions of this Agreement, the Company will QES Parties shall use its best their respective commercially reasonable efforts to cause the Partnership to effect such registration to permit the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will QES Parties shall cause the Partnership as expeditiously soon as possiblereasonably practicable and as applicable to:
(a) subject to Section 2, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become be declared effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and 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 with respect to the disposition of all securities covered by Registrable Securities subject thereto for a period ending on the earlier of (i) 6 months after the effective date of such Registration Statement during and (ii) the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of date on which all the Registrable Securities covered thereby not being able subject thereto have been sold pursuant to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableRegistration Statement;
(c) notify the selling holders of Registrable Securities and the managing underwriterswithin a reasonable time before filing such Registration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 thereto with the Commission, furnish to the Registration Statement or the Prospectus or for additional information, (3) of the issuance one counsel selected by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 underwriters and the holders of a majority of the Registrable Securities being sold agree should included in such Registration Statement, Prospectus or amendments or supplements thereto copies of such documents proposed to be included therein relating filed, which documents shall be subject to the plan review, comment and approval of distribution such counsel;
(d) notify each selling holder of Registrable Securities, promptly after the Partnership 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 with respect the Commission;
(e) furnish to each selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto (in each case including all exhibits 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 owned by such seller;
(f) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any selling holder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holders; provided, that the Partnership shall not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this Section 5(f);
(g) notify each selling holder of such Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the QES Parties shall cause the Partnership to prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) make available for inspection by any selling holder 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 holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Partnership, and cause the Partnership’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement;
(i) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Units are then listed;
(k) in connection with an underwritten offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms making appropriate officers of the underwritten Partnership available to participate in “road show” and other customary marketing activities (or best efforts underwritten) offering including one-on-one meetings with prospective purchasers 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendmentSecurities));
(fl) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its holders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than thirty (30) days after the end of the 12-month period beginning with the first day of the Partnership’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Partnership timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) furnish to each selling holder of Registrable Securities and each managing underwriter, without chargeif any, at least one signed copy with (i) a written legal opinion of the Registration Statement Partnership’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of registrants’ counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by the Partnership’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 5(f), use its commercially reasonable efforts to cause such 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 Partnership to enable the seller or sellers thereof or the underwriters, if any, holders of such Registrable Securities to consummate the disposition of such Registrable SecuritiesSecurities in accordance with their intended method of distribution thereof;
(ko) upon notify the occurrence holders of Registrable Securities promptly of any event contemplated request by paragraph the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(c)(6p) aboveadvise the holders of Registrable Securities, prepare a supplement promptly after it shall receive notice or posteffective amendment to obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the related Prospectus initiation or threatening of any document incorporated therein by reference proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or file any other required document so that, as thereafter delivered to obtain its withdrawal at the purchasers earliest possible moment if such stop order should be issued;
(q) cooperate with the holders of the Registrable SecuritiesSecurities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of Common Units and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that the Prospectus will not contain an untrue statement Partnership may satisfy its obligations hereunder without issuing physical stock certificates through the use of a material fact or omit to state any material fact necessary to make the statements therein not misleadingfacilities of The Depository Trust Company (“DTC”);
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(mr) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyDTC; provided, that the Partnership may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of DTC;
(ns) enter into such agreements (including an underwriting agreement) and take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to the Partnership, the Partnership will take all commercially reasonable action to make any such prohibition inapplicable; and
(t) otherwise use its commercially reasonable efforts to take all other actions in connection therewith in order steps necessary to expedite or facilitate effect the disposition registration of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicehereby.
Appears in 3 contracts
Sources: Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts If and whenever Constar is required to effect such or cause the registration to permit the sale of such any Registrable Securities under the Securities Act as provided in accordance with the intended method or methods of distribution thereofthis Agreement, and pursuant thereto the Company will Constar will, as expeditiously as reasonably possible:
(a) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the registration statement with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDSecurities, and use its best efforts to cause such Registration Statement registration statement to become effective; provided effective and to keep Holders of Registrable Securities registered under such registration statement (“Participating Holders”) advised in writing of the initiation and progress of proceedings regarding such registration, provided, however, that before filing a Registration Statement Constar may discontinue, in accordance with Sections 3 or Prospectus 4 hereof, as the case may be, any registration of its securities which is being effected pursuant to Sections 3 or 4 hereof at any amendments or supplements time prior to the effective date of the registration statement relating thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwritersprovided, if anyfurther, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will that Constar shall not file any Registration Statement pursuant to Sections 3 or 4 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority of the Registrable Securities covered by such Registration Statement any Participating Holder or the underwriters, if any, shall reasonably objectobject in light of the requirements of the Securities Act or any other applicable laws or regulations;
(bi) except in the case of a Demand Registration on a Shelf Registration Statement, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, a period of not less than 180 days or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement registration statement have been sold; cause sold (but not before the Prospectus expiration of the 90-day period referred to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under in Section 4(3) of the Securities Act; Act and 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 registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers Participating Holders thereof set forth in such registration statement;
(ii) in the case of a Demand Registration Statement or supplement on a Shelf Registration Statement, prepare and file with the Commission such amendments and supplements to such registration statement and the Prospectus; the Company shall not prospectus used in connection therewith as may be deemed to have used its best efforts necessary to keep such registration statement effective for a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the not less than 24 months or such shorter period which will terminate when all Registrable Securities covered thereby by such registration statement have been sold (but not being able before the expiration of the 90-day period referred to sell such Registrable in Section 4(3) of the Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith Act and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k)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 Participating Holders thereof set forth in such registration statement;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities Participating Holders and each managing underwriter, without charge, at least one signed copy of the 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)) and a reasonable number of conformed copies of all such documents;
(gd) deliver furnish to the Participating Holders such number of copies of such registration statement and of each selling holder such amendment and supplement thereof (in each case including all exhibits), such number of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus prospectus included in such registration statement (including each preliminary prospectus and summary prospectus) ), in conformity with the requirements of the Securities Act, and any amendment or supplement thereto such other documents as such Persons a Participating Holder may reasonably request; request in order to facilitate 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 connection with the offering and sale disposition of the Registrable Securities covered by the Prospectus or any amendment or supplement theretosuch seller;
(he) prior use its best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale covered by such registration statement under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing a Participating Holder shall request, and do any and all other acts or and things which may be necessary or advisable to enable the Participating Holders to consummate the disposition in such jurisdictions of the Registrable Securities covered by the Registration StatementSecurities; provided provided, however, that the Company will Constar shall 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 or subject itself to general taxation in any jurisdiction where it is not then so subject;
(if) cooperate with the selling holders of Registrable Securities Participating Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(jg) use its best efforts to cause the immediately notify each seller of any Registrable Securities covered by such registration statement, at any time when the applicable Registration Statement registration statement is required to be registered with kept effective under clause (b) of this Section 4, of Constar becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or approved by such other governmental agencies omits to state a material fact required to be stated therein or authorities necessary to make the statements therein not misleading in the light of the circumstances then existing (which facts the Participating Holders shall keep confidential and not trade upon), and within ten days prepare and furnish to each Participating Holder a reasonable number of copies of an amended or supplemental prospectus as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(lh) cause all make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(i) use its best efforts to list such Registrable Securities on any securities exchange 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 the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) registration statement not later than the effective date of the Registration Statement, such registration statement;
(j) provide a CUSIP number transfer agent and registrar for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanySecurities;
(nk) enter into furnish each Participating Holder a signed counterpart, addressed to such agreements seller (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any) of:
(i) an opinion of counsel for Constar, 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 satisfactory in formform and substance to each Participating Holder and the managing underwriter, substance and scope if any; and
(ii) a “comfort” letter, 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), signed by the independent public accountants who have certified Constar’s financial statements included in such registration statement, covering such matters with respect to such registration statement as are customarily made by issuers covered in accountants’ letters delivered to the underwriters in primary underwritten offerings of securities as may reasonably be requested by Holder and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwritersunderwriter, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;and
(ol) make available for inspection by a representative of the holders of a majority of the Registrable Securitieseach Participating Holder, by any underwriter participating in any disposition to be effected pursuant to such registrationregistration statement and by any attorney, and any attorney accountant or accountant other agent retained by any Participating Holder or any such underwriter (individually, an “Inspector” and collectively, the sellers or underwriter“Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Constar as shall be reasonably necessary to enable them to exercise their due diligence responsibilities (collectively, the Company“Records”), and cause the Company's all of Constar’s officers, directors and employees to supply all information reasonably requested by any Participating Holder or any such representative, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationregistration statement; provided that any records, such Participating Holder agrees that non-public information or documents that are designated obtained by the Company in writing it as confidential a result of such Inspections shall be kept deemed confidential by such Persons unless disclosure and acknowledges its obligations under the Federal securities laws not to trade any securities of such records, information or documents is required by court or administrative orderConstar on the basis of material non-public information;
(pm) enter into a customary underwriting agreement if such registration is to be underwritten;
(n) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten underwriting offering, or and (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's Constar’s first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(qo) promptly prior take such other reasonable steps that are necessary or advisable to permit the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition sale of such Registrable Securities Securities. Each Participating Holder agrees that, upon receipt of any notice from the Company Constar of the happening of any event of the kind described in clause (g) of this Section 6(k) hereof5, such holder Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder's Participating Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by clause (g) of this Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 Prospectus5, and, if so directed by the CompanyConstar, such holder Participating Holder will deliver to the Company Constar (at the Company's Constar’s expense) all copies, other than permanent file copies then in such holder's Participating Holder’s possession, of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such Constar’s notice. In the event the Company Constar shall give any such notice, the time periods regarding the maintenance mentioned in clause (b) of such Registration Statement 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 (g) of this Section 6(c)(6) hereof 5 to and including the date when each seller of Registrable Securities covered by such Registration Statement Participating Holder shall have received the copies of the supplemented or amended prospectus contemplated by clause (g) of this Section 6(k) hereof or the Advice5.
Appears in 3 contracts
Sources: Registration Rights Agreement (Crown Cork & Seal Co Inc), Registration Rights Agreement (Constar Inc), Registration Rights Agreement (Constar International Inc)
Registration Procedures. (a) In connection with the Company's registration obligations of any Registrable Securities under the Securities Act pursuant to Section 3 hereofArticle II and Article III, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will Corporation shall as expeditiously as reasonably possible:
(ai) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof registration statement to effect such registration and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and thereafter use reasonable best efforts to cause such Registration Statement registration statement to become effective; provided and remain effective 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, however, that the Corporation may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that no less than five (5) Business Days before filing a Registration Statement or Prospectus such registration statement, prospectus or any amendments or supplements thereto, the Company Corporation will furnish to the holders of counsel selected by the Stockholders which are including Registrable Securities covered by in such Registration Statement and the underwriters, if any, registration copies of all such documents proposed to be filed, which documents will be subject to the reasonable review review, comment and approval of such holders and underwriterscounsel prior to filing, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto such review to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;be conducted with reasonable promptness;
(bii) prepare and file with the SEC such amendments and amendments, post-effective amendments and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and 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 with respect to the disposition of all securities covered by such Registration Statement during registration statement until the applicable period earlier of such time as all of such securities have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof set forth in such Registration Statement registration statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an Underwritten Offering, such longer period as in the opinion of counsel for the underwriters for such Underwritten Offering that a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer).
(iii) furnish to each Selling Stockholder and each underwriter, if any, of the securities being sold by such 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 the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each free writing prospectus (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 Selling Stockholder and underwriter, if any, may reasonably request in order to facilitate the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders public sale or other disposition of the Registrable Securities covered thereby not being able to sell owned by such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Selling Stockholder;
(civ) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein not misleading;
(d) make every use reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in register or qualify such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the such registration or qualification of statement under such Registrable Securities for offer and sale under the other securities laws or blue sky laws of such jurisdictions as any seller or Selling Stockholder and any underwriter of the securities being sold by such Selling Stockholder shall reasonably requests in writing request, and do take any and all other acts or things action which may be reasonably necessary or advisable to enable such Selling Stockholder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such Selling Stockholder, except that the Company will Corporation shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction where it is not then so qualified subject or (C) file a general consent to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(jv) use its reasonable best efforts to cause the such Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company Corporation are then listed and, if requested by the holders of a majority of no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities or to be listed on the managing underwriters, if anyNational Securities Exchange on which the Common Shares are listed;
(mvi) not later than the effective date of the Registration Statement, provide a CUSIP number for all use reasonable best efforts to cause such Registrable Securities and provide the applicable trustee(s) covered by such registration statement to be registered with or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all approved by such other actions in connection therewith in order Governmental Entities as may be necessary to expedite or facilitate enable each Selling Stockholder thereof to consummate the disposition of such Registrable Securities Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Stockholder and in such connection, whether or not underwriter:
(A) an underwriting agreement is entered into and whether or not opinion of counsel for the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if anyCorporation, in form, substance customary form and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders Selling Stockholder and underwriters; , and
(3B) obtain "cold 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 Corporation’s financial statements included in such registration statement and additional comfort letters and updates thereof from the Company's independent certified registered public accountants addressed to accounting firm for any company acquired by the selling holders of Registrable Securities and Corporation whose financial statements are included or incorporated by reference in the underwriters, if any, such letters to be registration statement) in customary form and covering such matters of the type as are customarily covered in "cold comfort" by comfort letters by underwriters in connection with primary underwritten offerings; (4) as such underwriter and such Selling Stockholders may reasonably request; provided, however, that if an underwriting agreement the Corporation fails to obtain such legal opinion or comfort letter hereunder and the relevant offering is entered intoabandoned, the same shall set forth in full the indemnification provisions and procedures then such offering will not count as a Demand Registration or Shelf Takedown for purposes of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as determining when future Demand Registrations or Shelf Takedowns may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderStockholders hereunder;
(oviii) promptly make available for inspection by a representative of the holders of a majority of the Registrable Securitiesany Selling Stockholder, any underwriter participating in any disposition pursuant to such registrationany registration statement, and any attorney attorney, accountant or accountant other agent or representative retained by any such Selling Stockholder or underwriter (collectively, the sellers or underwriter“Inspectors”), all financial and other records, pertinent corporate documents and properties of the CompanyCorporation (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 Company's Corporation’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant Inspector in connection with such registration; provided that any recordsregistration statement; provided, information or documents that are designated by however, that, unless the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such recordsRecords is necessary to avoid or correct a misstatement or omission in the 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 reasonably believes, based on the opinion of counsel for the Corporation, that to do so would cause the Corporation to forfeit an attorney-client privilege that was applicable to such information (provided that the Corporation will use commercially reasonable efforts to provide any such information with redactions or other customary limitations to the extent feasible to do so in a manner that would avoid the effect set forth in this clause (i)) 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 abide by customary confidentiality obligations 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 any stop order suspending the effectiveness of the registration statement or of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale in any jurisdiction, or the initiation of any proceedings by any Person for the foregoing purposes; and
(D) 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) promptly notify each Selling Stockholder, at any time when a prospectus relating thereto is required by court to be delivered under the Securities Act, upon discovery that, or administrative order;upon the 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, and promptly prepare and furnish to such Selling Stockholder a reasonable number of copies of a supplement to or an 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;
(pxi) use reasonable best efforts to prevent the issuance of and, if issued, obtain the withdrawal of any order suspending the effectiveness of such registration statement or any suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction;
(xii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holderseach Selling Stockholder, earnings statements satisfying as soon as reasonably practicable, an earning statement of the Corporation covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first day of the Corporation’s first full quarter after the effective date of such registration statement, which earning statement 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 in a form eligible for deposit with The Depository Trust Company (which shall not subject to any stop transfer order with any transfer agent and will 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 reasonable best efforts to cooperate as 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, no use reasonable best efforts to make all required filings of all prospectuses and Free Writing Prospectuses with the SEC and (B) within the deadlines specified by the Exchange Act, use reasonable best efforts to 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) use reasonable best efforts to 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 their reasonable review and comment, such review and comment to be conducted promptly;
(xxi) not later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 Statementapplicable registration statement, which statements shall cover said 12-month periodsprovide a CUSIP number for all Registrable Securities; and
(qxxii) promptly prior to take all other reasonable steps necessary or advisable to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing registration and disposition of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities contemplated hereby.
(b) The Corporation may require each Selling Stockholder and to the managing underwriterseach underwriter, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company Corporation in writing such information regarding each Selling Stockholder or underwriter and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.R
Appears in 3 contracts
Sources: Registration Rights Agreement (Laird Superfood, Inc.), Registration Rights Agreement (Laird Superfood, Inc.), Registration Rights Agreement (Laird Superfood, Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the The Company will shall use its best commercially reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities Shares in accordance with the intended method or methods of distribution thereofterms hereof, and pursuant thereto the Company will shall as expeditiously as possible, but subject to the other provisions of this Agreement:
(a) prepare and file with the SECSEC by the applicable Filing Deadline or the Required Filing Date, as soon as practicableapplicable, a each Registration Statement or Registration Statements on any the appropriate form under the Securities Act, which form shall be available for the sale of the Act with respect to such Registrable Securities Shares as required or permitted in accordance with the intended method or methods terms of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, this Agreement and use best commercially reasonable efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, effective by the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwritersapplicable Effectiveness Deadline, and to remain continuously effective throughout the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwritersapplicable Effectiveness Period, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and amendments, post-effective amendments amendments, and supplements to the each Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for throughout the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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; Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Shares during such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement; provided that as far in advance as practicable before filing any such Registration Statement or any amendment or supplement to such Registration Statement, the ProspectusCompany shall furnish to the selling Holders copies of reasonably complete drafts of all such documents prepared to be filed (including exhibits and documents that are to be incorporated by reference into the Registration Statement, amendment or supplement), and any such Holder shall have the opportunity to provide comments to any information contained therein and the Company shall make any corrections or other amendments reasonably requested by such Holder with respect to such information prior to filing any such Registration Statement, amendment or supplement;
(b) furnish without charge to each Holder selling Registrable Shares and the underwriters, if any, of the securities being registered such number of copies of each Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus and any summary prospectus), any documents incorporated by reference therein and such other documents as such Holder or underwriters may reasonably request in order to facilitate the disposition of the Registrable Shares owned by such Holder or the sale of such securities by such underwriters (it being understood that, subject to this Section 2.5 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each such Holder and the underwriters in connection with the offering and sale of the Registrable Shares covered by the Registration Statement of which such prospectus, amendment or supplement is a part);
(c) use commercially reasonable efforts to register or qualify such Registrable Shares under such other securities or “blue sky” laws of such jurisdictions as any Holder thereof or any managing underwriters reasonably request; use commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the applicable Effectiveness Period; and do any and all other acts and things which may be reasonably necessary or advisable to enable each such Holder to consummate the disposition of the Registrable Shares owned by such Holder in such jurisdictions; provided that the Company shall not be deemed required to have used its best efforts (i) qualify generally to keep a Registration Statement effective during the applicable period if do business in any jurisdiction where it voluntarily takes would not otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any action that would result such jurisdiction where it is not at such time so subject, or (iii) consent to general service of process in selling holders of the Registrable Securities covered thereby any such jurisdiction where it is not being able to sell at such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, time so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablesubject;
(cd) promptly notify the selling holders each Holder of such Registrable Securities Shares and the managing underwriterseach underwriter, if any, promptly, and in writing (if requested by any such Person) confirm such advice in writing, (1i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, filed and, with respect to the a 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 additional information, (3ii) of the issuance by the Commission any state securities or other regulatory authority of any stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement Registrable Shares under state securities or “blue sky” laws or the initiation or threat of initiation of any proceedings for that purpose, ; and (4iii) if such Registration Statement or related prospectus, at the time it or any amendment thereto became effective or at any time the representations and warranties of the Company contemplated by paragraph (o) below cease such prospectus is required to be true and correctdelivered under the Securities Act, (5) contained an untrue statement of the receipt by the Company of any notification with respect a material fact or omitted to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction state a material fact required to be stated therein or the initiation or threatening of any proceeding for such purpose and (6) 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 in order necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain , upon the withdrawal discovery by the Company of such material misstatement or omission or of the happening of any order suspending event as a result of which the effectiveness Company believes there would be such a material misstatement or omission; provided that, in the case of clause (iii), promptly after delivery of such notice, the Company shall, as the case may be, (x) prepare and file with the SEC a post-effective amendment to such Registration Statement and use commercially reasonable efforts to cause such amendment to become effective so that such Registration Statement, as so amended, shall not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the Registration Statement at circumstances under which they were made, not misleading or (y) prepare and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the earliest possible momentpurchasers of such Registrable Shares, such prospectus shall not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(e) permit (i) any selling Holder that, in such Holder’s reasonable judgment, may be deemed to be an underwriter or a controlling person of the Company (in each case, within the meaning of the Securities Act) and (ii) any selling Holder holding, or representing Holders of, a majority of the Registrable Shares included in such Registration Statement, to participate in the preparation of such Registration Statement or related prospectus and reasonably incorporate any information about such Holder furnished to the Company by such Holder that, in the reasonable judgment of the Company, should be included;
(f) make reasonably available senior management of the Company, as selected by the Holders of a majority of the Registrable Shares included in such registration, to assist in the marketing of the Registrable Shares covered by such registration, including the participation of such members of the Company’s senior management in road show presentations and other customary marketing activities, including “one on one” meetings with prospective purchasers of the Registrable Shares to be sold in an Underwritten Registration and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary registered offering of its capital stock; provided that such assistance does not unduly interfere with the normal operations of the Company in the ordinary course of business, consistent with past practice;
(g) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, including the Securities Act and the Exchange Act, and make generally available to the Company’s security holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, as soon as reasonably practicable, but no later than thirty (30) days after the end of the twelve (12)-month period beginning with the first day of the Company’s first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said twelve (12)-month period; provided that such requirement shall be deemed satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act as required thereby and otherwise complies with Rule 158 under the Securities Act;
(h) in the case of an Underwritten Registration, if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringany selling Holder, promptly incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should or such selling Holder reasonably requests to be included therein relating to the plan of distribution with respect to such Registrable Securitiestherein, including, without limitation, information including with respect to the number of Registrable Securities Shares being sold to by such underwritersselling Holder, the purchase price being paid therefor by such the underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities Shares to be sold in such offering; , and promptly make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities Holders and the managing underwriters, if any, underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be Shares sold and under any Registration Statement, which certificates shall not bearing bear any restrictive legends; legends unless required under applicable law, and enable such Registrable Securities Shares to be in such denominations and registered in such names as the managing underwriters or such selling Holders may request at least two business days and keep available and make available to the Company’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch Registration Statement a supply of such certificates;
(j) promptly make available for inspection by any selling Holder and 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 them to exercise their due diligence responsibility, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Inspector in connection with such Registration Statement; provided that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the 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 (j) if (i) the Company reasonably determines in good faith, after consultation with outside counsel, 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 clause (ii) such selling Holder requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further that each selling Holder agrees that it shall, 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;
(k) furnish to each selling Holder and underwriter, if any, copies of (i) an opinion or opinions of counsel to the Company and updates thereof covering the matters customarily covered in opinions requested in underwritten offerings and (ii) a comfort letter or comfort letters and updates thereof from the Company’s independent public accountants, each in customary form and covering such matters of the type customarily covered by comfort letters to underwriters in connection with underwritten offerings;
(l) cause the Registrable Shares included in any Registration Statement to be listed on each securities exchange or quotation system, if any, on which similar securities issued by the Company are then listed or quoted;
(m) provide a transfer agent and registrar for all Registrable Shares registered hereunder not later than the effective date of the Registration Statement related thereto;
(n) use its best commercially reasonable efforts to cause the Registrable Securities Shares covered by the applicable such Registration Statement to be registered with or approved by such other governmental agencies or authorities Governmental Authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Shares;
(o) notify each selling Holder promptly of any written comments by the SEC or any request by the SEC for the amending or supplementing of such Registration Statement or prospectus or for additional information;
(p) if applicable, enter into an underwriting agreement for such offering, such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to that offering, including indemnities and contribution to the effect and to the extent provided in Section 2.8 and the provision of opinion of counsel and accountants’ letters to the effect and to the extent provided in Section 2.5(k) and enter into any other such customary agreements and take all such other actions as the Holders of a majority of the Registrable Shares covered by the Registration Statement or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Shares. The selling Holders shall be parties to any such underwriting agreement, and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such selling Holders;
(q) make every reasonable effort to prevent the entry of any order suspending the effectiveness of the Registration Statement and, in the event of the issuance of any such stop order, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any security included in such connectionRegistration Statement for sale in any jurisdiction, whether or the Company shall use commercially reasonable efforts promptly to obtain the withdrawal of such order;
(r) provide a CUSIP number for all Registrable Shares not later than the effective date of the Registration Statement with respect thereto;
(s) in connection with an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) Underwritten Registration, make such representations and warranties to the holders selling Holders of such Registrable Securities Shares and the underwriters, if any, in form, substance underwriters with respect to the Registrable Shares and scope the Registration Statement as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be reasonably requested by each seller of Registrable Shares covered by the holders of a majority of Registration Statement and by the Registrable Securities being sold and the managing underwriters, if any, underwriters to evidence compliance with clause (k) above such representations and warranties and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(ot) make available for inspection by a representative advise each selling Holder, promptly after it shall receive notice or obtain knowledge thereof, of the holders issuance or threat of a majority issuance of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained stop order by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of SEC suspending the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure effectiveness of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing initiation or threatening of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel any proceeding for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as purpose and promptly use commercially reasonable efforts to which any registration is being effected to furnish to prevent the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt issuance of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented stop order or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 deliver to the Company (obtain its withdrawal 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.earliest p
Appears in 3 contracts
Sources: Common Stock Purchase Agreement, Registration Rights Agreement (Par Petroleum Corp/Co), Common Stock Purchase Agreement (Par Petroleum Corp/Co)
Registration Procedures. In connection with (a) Whenever the Company's registration obligations Stockholder requests that any Registrable Common Stock be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its reasonable best efforts to effect such effect, as soon as practical as provided herein, the registration to permit and the sale of such Registrable Securities Common Stock in accordance with the intended method or methods of distribution disposition thereof, and and, pursuant thereto thereto, the Company will shall, as expeditiously soon as possiblepractical as provided herein:
(ai) subject to the other provisions of this Agreement, use reasonable best efforts to prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof Common Stock and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effectiveeffective (unless it is automatically effective upon filing); provided that and before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Stockholder and the underwritersunderwriters or other distributors, if any, identified by the Stockholder copies of all such documents proposed to be filed, which including documents will be subject incorporated by reference in the Prospectus and, if requested by the Stockholder, one set of the exhibits incorporated by reference, and the Stockholder and a single counsel selected by the Stockholder (“Stockholder’s Counsel”) shall have a reasonable opportunity to review and comment on the Registration Statement and each such Prospectus (and each amendment or supplement thereto) before it is filed with the SEC, and the Stockholder shall have the opportunity to object to any information pertaining to the reasonable review of such holders and underwriters, Stockholder that is contained therein and the Company will not file make the corrections reasonably requested by the Stockholder with respect to such information prior to filing any Registration Statement or amendment thereto or any Prospectus or any amendment or supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectthereto;
(bii) use reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep the such Registration Statement effective for the applicable periodrelevant period required hereunder, or such shorter period which will terminate when all Registrable Securities but no longer than is necessary to complete the distribution of the Common Stock covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplementStatement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all securities the Common Stock covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution by the sellers thereof disposition set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(ciii) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein not misleading;
(d) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible momentqualification or exemption from qualification of any Registrable Common Stock for sale in any jurisdiction in the United States;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fiv) furnish to each selling holder of Registrable Securities the Stockholder and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many 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, such number of copies of the preliminary and final Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons the Stockholder may reasonably request; request in order to facilitate 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 connection with the offering and sale disposition of the Registrable Securities Common Stock of the Stockholder covered by such Registration Statement in conformity with the Prospectus or any amendment or supplement theretorequirements of the Securities Act;
(hv) prior use reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale Common Stock under the such other securities or blue sky laws of such U.S. jurisdictions as any seller or underwriter the Stockholder reasonably requests and continue such registration or qualification in writing and do any and all other acts or things necessary or advisable to enable the disposition effect in such jurisdictions of for as long as the Registrable Securities covered by the applicable Registration Statement; Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph (v), (2) subject itself to taxation in any such jurisdiction or to take any action which would subject it (3) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction);
(ivi) cooperate with notify the selling holders of Registrable Securities Stockholder and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition each distributor of such Registrable Securities;
(k) upon Common Stock identified by the Stockholder, at any time when a Prospectus relating thereto is required under the Securities Act to be delivered by such distributor, of the occurrence of any event contemplated by paragraph (c)(6) aboveas a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading, prepare and, at the request of the Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, and in any event within two Business Days, a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable SecuritiesCommon Stock, the such Prospectus will shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lvii) in the case of an underwritten offering in which the Stockholder participates pursuant to a Demand Registration, Piggyback Registration or an S-3 Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters) as are 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 Registrable Common Stock (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 in which the Stockholder participates pursuant to a Demand Registration, Piggyback Registration or an S-3 Registration, and to the extent not prohibited by applicable law or pre-existing applicable contractual restrictions, (A) make reasonably available, for inspection by the Stockholder, Stockholder’s Counsel, the managing underwriters of such offering and one counsel (and one accountant) for such managing underwriter, pertinent corporate documents and financial and other records of the Company and its subsidiaries and controlled Affiliates, (B) cause all Registrable Securities covered the Company’s officers and employees to supply information reasonably requested by the Registration Statement Stockholder or such managing underwriters or attorney in connection with such offering and (C) 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;
(ix) use reasonable best efforts to cause all such Registrable Common Stock to be listed on each securities exchange on which similar securities of the same class issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(mx) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of the such Registration Statement and, a reasonable time before any proposed sale of Registrable Common Stock pursuant to a Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyCommon Stock to be sold, subject to the provisions of Section 11;
(nxi) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, shareholders a consolidated earnings statements satisfying the provisions statement (which need not be audited) for a period of Section 11(atwelve (12) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, months beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration StatementStatement as soon as reasonably practicable after the end of such period, which statements earnings statement shall cover said 12-month periodssatisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(qxii) promptly prior notify the Stockholder and the managing underwriters of any underwritten offering:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the filing 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 document which is request by the SEC for amendments or supplements to be incorporated by reference into the Registration Statement or the Prospectus or for any additional information regarding the Stockholder;
(after initial filing 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 Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction; and
(xiii) keep Stockholder’s Counsel reasonably apprised as to the intention and progress of the Company with respect to any Registration Statement hereunder, including by providing Stockholder’s Counsel with copies of all written correspondence with the SEC in connection with any Registration Statement or Prospectus filed hereunder. For the avoidance of doubt, the provisions of clauses (vii), provide copies (viii) and (xi) of such document this Section 7(a) shall apply only in respect of an underwritten offering and only if (based on market prices at the time the offering is requested by the Stockholder) the number of shares of Registrable Common Stock to counsel be sold in the offering would yield gross proceeds to the selling holders Stockholder of Registrable at least the Minimum Amount. Notwithstanding any provision of this Agreement, the Company shall not be obligated to prepare for inclusion in any Registration Statement any audited financial statements for any period other than a fiscal year of the Company beginning on or after October 1, 2012 or any unaudited financial statements for any period other than a first, second or third fiscal quarter of any such fiscal year.
(b) 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, or necessary to make the statements therein not misleading, and 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 light of the circumstances under which they were made, not misleading, in each case, 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 Company by or on behalf of NAB or the Stockholder or any underwriter or other distributor specifically for use therein.
(c) At all times after the Company has filed a registration statement with the SEC pursuant to the requirements of the Securities Act and until the Termination Date, the Company shall use reasonable best efforts to continuously maintain in effect the registration statement of Common Stock under Section 12 of the Exchange Act and to use reasonable best efforts to file all reports required to be filed by it under the managing underwritersSecurities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, if any, make all to the Company's representatives available for discussion of such document and make such changes in such document extent required to enable the Stockholder to be eligible to sell Registrable Common Stock pursuant to Rule 144 under the Securities Act prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. Termination Date.
(d) The Company may require the Stockholder and each seller distributor of Registrable Securities Common Stock as to which any registration is being effected to furnish to the Company such any other information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities request.
(e) The Stockholder agrees by acquisition of such having its stock treated as Registrable Securities Common Stock hereunder that, upon receipt of any notice from being advised in writing by the Company of the happening occurrence of an event pursuant to Section 7(a)(vi), the Stockholder will immediately discontinue (and direct any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition other Persons making offers and sales of Registrable Securities until such holder's receipt Common Stock to immediately discontinue) offers and sales of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or Registrable Common Stock until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, resumed and has received copies of any additional is furnished with a supplemented or supplemental filings which are incorporated amended Prospectus as contemplated by reference in the ProspectusSection 7(a)(vi), and, if so directed by the Company, such holder the Stockholder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's the Stockholder’s possession, of the Prospectus covering such Registrable Securities Common Stock current at the time of receipt of such notice.
(f) 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 prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus. In Neither the event Stockholder nor any other seller of Registrable Common Stock may use a free-writing prospectus to offer or sell any such stock without the Company’s prior written consent.
(g) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 2, 4 or 7 or otherwise in this Agreement, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and diligent efforts to resolve those comments, shall not be a breach of this Agreement. However, neither shall any such failure relieve the Company of its obligations hereunder to use reasonable best efforts to remedy such failure.
(h) It is further understood and agreed that the Company shall give not have any obligations under this Section 7 at any time on or after the Termination Date, unless an underwritten offering in which the Stockholder participates has been priced but not completed prior to the Termination Date, in which event the Company’s obligations under this Section 7 shall continue with respect to such noticeoffering until such offering is completed or for 15 business days, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicewhichever is shorter.
Appears in 3 contracts
Sources: Registration Rights Agreement (National Australia Bank LTD), Registration Rights Agreement (Great Western Bancorp, Inc.), Registration Rights Agreement (Great Western Bancorp, Inc.)
Registration Procedures. (a) In connection with the Company's registration obligations Registration and/or sale of Registrable Securities pursuant to Section 3 hereofthis Agreement, through an Underwritten Offering or otherwise, the Company will shall use its reasonable best efforts to effect such registration to permit or cause the Registration and the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibledisposition thereof and:
(ai) prepare and file with the SECrequired Registration Statement, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form including all exhibits and financial statements required under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC Act to be filed therewith, cooperate and assist in any filings required to be made before filing with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing SEC a Registration Statement or Prospectus Prospectus, or any amendments or supplements thereto, the Company will (A) furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, and to the Holders participating in such Registration, copies of all such documents proposed prepared to be filed, which documents will be subject to the reasonable review of such holders underwriters and underwriterssuch participating Holders and their respective counsel, and the Company will not file (B) consider in good faith any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority comments of the Registrable Securities covered by underwriters and Holders and their respective counsel on such Registration Statement or the underwriters, if any, shall reasonably objectdocuments;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for in accordance with the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus terms of this Agreement and 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 with respect to the disposition of all securities covered by of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such Registration Statement during and the applicable period Prospectus used in accordance with the intended method or methods of distribution by the sellers thereof set forth in connection therewith as may be necessary to keep such Registration Statement or supplement effective and to comply with the provisions of the Securities Act with respect to the Prospectus; disposition of all Shares subject thereto for a period ending on the Company shall not be deemed to have used its best efforts to keep a 3rd anniversary after the effective date of such Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(civ) notify the selling holders of Registrable Securities participating Holders and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personrequested) confirm such advice in writingwriting and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (1A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to the such Registration Statement or the such Prospectus or for additional information, (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the 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 that purposesuch purposes, (4D) if if, at any time time, the representations and warranties of the Company contemplated by paragraph (o) below in any applicable underwriting agreement cease to be true and correctcorrect in all material respects, and (5E) 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 purpose;
(v) promptly notify each selling Holder and (6) the managing underwriter or underwriters, if any, when the Company becomes aware of the happening occurrence of any event as a result of which makes any statement made in the applicable Registration Statement, Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact 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 in order 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 misleadingmisleading 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;
(dvi) make every use its reasonable effort best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the effectiveness use of the Registration Statement at the earliest possible momentany preliminary or final Prospectus;
(evii) if 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 underwriters underwriters, if any, and the holders Holders may reasonably request to be included therein in order to permit the intended method of a majority distribution 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 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;
(fviii) furnish to each selling holder of Registrable Securities Holder and each managing underwriter, if any, without charge, at least one signed copy 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);
(gix) deliver to each selling holder of Registrable Securities Holder and the underwriterseach underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary prospectusProspectus) and any amendment or supplement thereto as such Persons Holder or underwriter may reasonably request; request (it being understood that the Company consents to the use of the such Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(hx) on or prior to any public offering of Registrable Securitiesthe date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify or qualify, and cooperate with the each selling holders of Registrable SecuritiesHolder, the managing underwriter or underwriters, if any, and their respective counsel counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky sky” laws of such jurisdictions each state and other jurisdiction of the United States as any seller selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts or things reasonably necessary or advisable to enable keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to 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 covered by the 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(ixi) cooperate in connection with the selling holders 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 enable to register such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the managing underwriters underwriter(s), if any, may request at least two business days Business Days prior to any such sale of Registrable Securities to Securities; provided that the underwritersCompany may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(jxii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if any, on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’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 the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(mxiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(nxiv) enter into such agreements (including in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter or underwriters, an opinion from the Company’s outside counsel in customary form and content for the type of Underwritten Offering, dated the date of the closing under the underwriting agreement;
(xv) in the case of an Underwritten Offering, obtain for delivery to and take all such other actions addressed to the underwriter or underwriters and, to the extent agreed by the Company’s independent certified public accountants, each selling Holder, a comfort letter from the Company’s independent certified public accountants (and the independent certified public accountants with respect to any acquired company financial statements) in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection therewith in order with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to expedite or facilitate the disposition closing under the underwriting agreement;
(xvi) 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;
(xvii) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s Class A Shares are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s Class A Shares are then quoted, including the filing of any required supplemental listing application;
(xviii) provide (A) each Holder participating in such connectionthe Registration, whether or not (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriting agreement is entered into and whether or not underwriter within the registration is an underwritten registration (1meaning of Section 2(11) make such representations and warranties to of the holders of such Registrable Securities and the underwritersAct), if any, in formof the Registrable Securities to be Registered, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in (C) the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriterssale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and the holders of a majority of the Registrable Securities being sold(E) addressed to each selling holder and the underwritersany attorney, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such accountant or other matters as may be reasonably requested agent or representative retained by such holders Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and underwriters; (3) obtain "cold comfort" letters each amendment or supplement thereto, and updates thereof from to require the Company's independent certified public accountants addressed insertion therein of material, furnished to the selling holders Company in writing, which in the reasonable judgment of Registrable Securities such Holder(s) and the underwriters, if any, such letters to their counsel should be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Sectionincluded; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of for a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and reasonable period prior to the extent required thereunder;
(o) filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating parties referred to in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter(A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Company, and cause the Company's ’s officers, directors employees and employees the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such representative, underwriter, attorney or accountant Person in connection with such registration; Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any recordssuch Person gaining access to information or personnel pursuant to this Section 2.04(a)(xviii) shall agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (x) the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents that are designated by a governmental entity, subpoena or similar process, (y) such information is or becomes publicly known without a breach of this Agreement, (F) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company in writing as confidential shall be kept confidential or (z) such information is independently developed by such Persons unless disclosure of such records, information or documents is required by court or administrative orderPerson;
(pxix) otherwise use its best efforts to comply with all applicable rules and regulations cause the executive officers of the SECCompany to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter participate in which Registrable Securities are sold to underwriters in a firm or best each proposed offering contemplated herein and customary selling efforts underwritten offering, or (2) 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 12-month periodsrelated thereto; and
(qxx) promptly prior take all other customary steps reasonably necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration Statement)hereunder, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities Holder as to which any registration 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, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each holder such Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of Registrable Securities this Agreement.
(c) Each Holder agrees by acquisition of such Registrable Securities that, upon receipt of any written notice from the Company of the happening occurrence of any event of the kind described in Section 6(k) hereof2.04(a)(v), such holder Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such holder's Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof2.04(a)(v), or until it such Holder is advised in writing (the "Advice") 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 Holder will deliver to the Company (at the Company's ’s expense) all copies, other than permanent file copies then in such holder's 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 regarding period during which the maintenance of such applicable Registration Statement for a Demand Registration is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received either receives the copies of the supplemented or amended prospectus Prospectus contemplated by Section 6(k2.04(a)(v) hereof or the Advice.is advised in writ
Appears in 3 contracts
Sources: Registration Rights Agreement (Vtex), Registration Rights Agreement (Zenvia Inc.), Registration Rights Agreement (Zenvia Inc.)
Registration Procedures. In connection with Whenever the Company's registration obligations holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best commercially reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) 5.1 prepare and file with the SEC, Commission a registration statement and such amendments and supplements as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall may be available for the sale of the necessary with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement registration statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders ;
5.2 notify each holder of Registrable Securities of the Registrable Securities covered by such Registration Statement effectiveness of each registration statement filed hereunder and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for a period of not less than 120 days (or until the applicable perioddistribution described in the registration statement has been completed) (or, or such shorter in the case of a Shelf Registration, a period ending on the earlier of (i) the date on which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause sold pursuant to the Prospectus Shelf Registration or have otherwise ceased to be supplemented by any required Prospectus supplementRegistrable Securities, and as so supplemented to be filed pursuant to Rule 424 under (ii) the Securities Act; 24-month anniversary of the effective date of such Shelf Registration) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement registration statement; provided, however, that at any time, upon written notice to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling participating holders of Registrable Securities and for a period not to exceed forty-five (45) days thereafter (the managing underwriters“Suspension Period”), if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus Company may suspend the use or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) effectiveness of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, registration statement (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 underwriters and the holders of Registrable Securities participating in such offering hereby agree not to offer or sell any Registrable Securities pursuant to such registration statement during the Suspension Period) if the Company reasonably believes that the Company may, in the absence of such suspension hereunder, be required under state or federal securities laws to disclose any corporate development the disclosure of which could reasonably be expected to have a material adverse effect upon the Company, its stockholders, a potentially significant transaction or event involving the Company, or any negotiations, discussions, or proposals directly relating thereto. No more than two (2) such Suspension Periods shall occur in any twelve (12) month period. In the event that the Company shall exercise its rights hereunder, the applicable time period during which the registration statement is to remain effective shall be extended by a period of time equal to the duration of the Suspension Period. The Company may extend the Suspension Period for an additional consecutive thirty (30) days with the consent of the holders of at least a majority of the Registrable Securities being proposed to be sold agree should be included therein relating by the holders participating in such offering. If so directed by the Company, the holders of Registrable Securities shall use their commercially reasonable efforts to deliver to the plan Company (at the Company’s expense) all copies, other than permanent file copies then in such holders’ possession, of distribution with respect the prospectus relating to such Registrable Securities, including, without limitation, information with respect Securities current at the time of receipt of such notice;
5.3 furnish to the number each seller of Registrable Securities being sold to such underwritersnumber of copies of such registration statement, each amendment and supplement thereto, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold prospectus included in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus registration statement (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons seller may reasonably request; request in order to facilitate 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 connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(h) prior 5.4 use commercially reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such seller (provided, however, that the Company will shall not be required to (a) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subsection, (b) subject itself to taxation in any such jurisdiction or to take any action which would subject it (c) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction);
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the 5.5 promptly notify each seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon , at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph (c)(6) aboveas a result of which 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 not misleading, and, at the request of any such seller, the Company shall prepare a reasonable number of copies of a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers sellers of the such Registrable Securities, the Prospectus will such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading, in which event the period mentioned in Section 5.2 shall be extended by the length of the period from and including the date when each seller of such Registrable Securities shall have received such notice to the date on which each such seller has received the copies of the supplemented or amended prospectus contemplated under this Section 5.5;
(l) 5.6 cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange and/or quotation system on which similar securities issued by the Company are then listed if requested by the holders of and/or quoted;
5.7 provide a majority of transfer agent and registrar for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(n) 5.8 enter into such customary agreements (including an underwriting agreementagreements in customary form) and take all such other actions in connection therewith as the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether (including effecting a stock split or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders a combination of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereundershares);
(o) 5.9 make available for inspection by a representative any seller of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationregistration statement, and any attorney attorney, accountant or accountant other agent retained by the sellers any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderregistration statement;
(p) 5.10 otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than 45 days after Act and Rule 158 thereunder;
5.11 in the end event of the issuance of any 12-month period (stop order suspending the effectiveness of a registration statement, or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm order suspending or best efforts underwritten offering, preventing the use of any related prospectus or (2) if not sold to underwriters suspending the qualification of any Common Stock included in such an offeringregistration statement for sale in any jurisdiction, beginning with the first month Company shall use its commercially reasonable efforts promptly to obtain the withdrawal of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodssuch order; and
(q) promptly prior 5.12 use its commercially reasonable efforts to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of cause such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the copies sellers thereof to consummate the disposition of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicesuch Registrable Securities.
Appears in 3 contracts
Sources: Registration Rights Agreement (Cargill Inc), Merger Agreement (Imc Global Inc), Registration Rights Agreement (Imc Global Inc)
Registration Procedures. In connection with the Company's registration obligations Whenever any Holder has requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best efforts Required Efforts to effect such the registration to permit the sale of such Registrable Securities and in accordance with the intended method or methods of distribution thereof, and pursuant thereto furtherance thereof the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements Commission on any appropriate form under the Securities Act, which form shall be available for the sale of the Act with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts its Required Efforts to cause such Registration Statement to become effective;
(i) prepare and file with the Commission such amendments, including post-effective amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for a period of not less than 180 days (or (1) such lesser period as is necessary for the underwriters in an Underwritten Offering to sell unsold allotments or (2) such longer period as may be commercially reasonable if such Registration Statement is for a shelf registration conducted pursuant to the provisions of Rule 415 (or any similar provisions then in force) promulgated under the Securities Act), but in any case not including in such 180 days any period for which sales have been discontinued pursuant to Section 7(c); provided that before filing a (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and, as so supplemented or amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible to any comments received from the Commission with respect to the Registration Statement or Prospectus or any amendments or supplements theretoamendment thereto and, as promptly as possible, provide the Company will furnish Holders true and complete copies of all correspondence from and to the holders Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by such the Registration Statement during the applicable period in accordance with the intended methods of disposition set forth in the Registration Statement as so amended or in such Prospectus as so supplemented;
(i) furnish to the Holders of Registrable Securities to be sold, their counsel and the any managing underwriters, if any, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the reasonable review of such holders Holders, their counsel and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto reasonable opinion of respective counsel to which such Holders and such underwriters, to conduct a reasonable investigation within the holders of a majority meaning of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectAct;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(cd) notify the selling holders Holders of Registrable Securities to be sold, their counsel and the any managing underwriters, if any, promptly, underwriters as promptly as possible and (if requested by any such Person) confirm such advice notice in writing, writing no later than one Business Day following the day:
(1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been to the Registration Statement is proposed to be filed, and, with respect to ;
(ii) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement;
(iii) when the Registration Statement or any post-effective amendment, when the same amendment thereto has become effective, ;
(2iv) of any request by the SEC Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information, ;
(3v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any proceedings Proceedings for that purpose, ;
(4vi) if at when any time of the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by paragraph (o) below hereby shall cease to be true and correct, correct in all material respects;
(5vii) 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 jurisdiction, or the initiation or threatening of any proceeding Proceeding for such purpose and purpose; and
(6viii) of the happening occurrence of any event which that makes any statement made in the Registration Statement, the Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in revisions to the Registration Statement, the Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any document incorporated untrue statement of a material fact or omit to state any material fact required to be stated therein by reference in order or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(de) make every reasonable effort use all Required Efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the 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 possible practicable moment;
(ef) if reasonably requested by the any managing underwriter or underwriters or a holder of underwriter, if any Registrable Securities being are to be sold in connection with an underwritten offeringUnderwritten Offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree Company reasonably agrees should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and thereafter make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this clause (f) that would, in the opinion of counsel for the Company, violate applicable law;
(fg) furnish to each selling holder Holder of Registrable Securities to be sold, their counsel and each any managing underwriterunderwriters, without charge, at least one signed conformed copy of the each Registration Statement and any post-effective each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference reference, 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;
(gh) promptly deliver to each selling holder Holder of Registrable Securities to be sold, their counsel, and the any underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusform of Prospectus) and any each amendment or supplement thereto as such Persons persons may reasonably request; and the Company hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities stockholders and the underwriters, if any, any underwriters in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any amendment or supplement thereto;
(hi) prior to any public offering of Registrable Securities, use its Required Efforts to register or qualify or cooperate with the selling holders of Registrable SecuritiesHolders, the underwriters, if any, any underwriters and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller selling Holder or underwriter reasonably requests in writing writing, to keep each such registration or qualification (or exemption therefrom) effective for at least 180 days (or such shorter period as the applicable Registration Statement shall be effective) and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the a Registration Statement; provided provided, however, that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject;
(ij) cooperate with the selling holders of Registrable Securities Holders and the any managing underwriters, if any, underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law, of all restrictive legends; , and to enable such Registrable Securities to be in such denominations and registered in such names as the any such managing underwriters or stockholders may request at least two business days Business Days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6Section 5(d)(viii) aboveof this Agreement, as promptly as possible, prepare a supplement or posteffective amendment amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or reference, and file any all other required document documents so that, as thereafter delivered to delivered, neither the purchasers of the Registrable Securities, the Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) use its Required Efforts to cause all Registrable Securities covered by the relating to such Registration Statement to be listed on each the securities exchange exchange, quotation system, market or over-the-counter bulletin board on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreementagreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including those reasonably requested by any managing underwriters in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, those reasonably requested by the selling Holders whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration into):
(1i) make such representations and warranties to the holders of such Registrable Securities selling Holders and the underwriters, if any, in form, substance and scope such underwriters as are customarily made by issuers to underwriters in primary underwritten offerings public offerings, and covering matters including, but not limited to, those set forth confirm the same if and when requested;
(ii) in the Purchase Agreement; (2) case of an Underwritten Offering, obtain and deliver copies thereof to the managing underwriters, if any, of opinions of counsel to the Company and updates thereof (which counsel and opinions (addressed to each such underwriter, in form, scope and substance) shall be substance reasonably satisfactory to any such managing underwriters and counsel to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, stockholders covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such holders counsel and underwriters; ;
(3iii) immediately prior to the effectiveness of the Registration Statement, and, in the case of an Underwritten Offering, at the time of delivery of any Registrable Securities sold pursuant thereto, obtain and deliver copies to the selling Holders and the managing underwriters, if any, of "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to the each selling holders Holder and each of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters substance as are customary in connection with primary underwritten offerings; Underwritten Offerings;
(4iv) if an underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures no less favorable to the selling Holders and the underwriters than those set forth in Section 9 of Section 8 hereof with respect this Agreement (or such other provisions and procedures acceptable to all parties to be indemnified pursuant to said Sectionthe managing underwriters and such selling Holders); and and
(5v) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority selling Holders, their counsel and any managing underwriters to evidence the continued validity of the Registrable Securities being sold representations and the managing underwriters, if any, warranties made pursuant to clause (i) above and to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(on) make available for inspection by a the selling Holders, any representative of the holders of a majority of the Registrable Securitiessuch Holders, any underwriter participating in any disposition pursuant to such registrationof Registrable Securities, and any attorney or accountant retained by such selling Holder or underwriters, at the sellers or underwriteroffices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the CompanyCompany and its subsidiaries, and cause the Company's officers, directors directors, agents and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Holder, representative, underwriter, attorney or accountant in connection with such registrationthe Registration Statement; provided provided, however, that any records, information or documents that are designated is determined in good faith by the Company in writing as to be of a confidential nature at the time of delivery of such information (A) shall be kept confidential by such Persons persons, unless (i) disclosure of such records, information or documents is required by court or administrative orderorder or is necessary to respond to inquiries of regulatory authorities; (ii) disclosure of such information, in the opinion of counsel to such person, is required by law; (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such person; or (iv) such information becomes available to such person from a source other than the Company and such source is not known by such person to be bound by a confidentiality agreement with the Company and (B) shall not be required to be disclosed to any representative or agent of a Holder with respect to which the Company has a good faith basis to request, and does so request, that disclosure of such confidential information not be made to such representative or agent;
(po) otherwise use its best efforts to comply in all material respects with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no Act and Rule 158 not later than 45 days after the end of any 12-month period (or 90 days, days after the end of any 12-month period if such period is a fiscal year) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering, or Underwritten Offering and (2ii) if not sold to underwriters in such an offering, beginning with commencing on the first month day of the Company's first fiscal quarter commencing of the Company after the effective date of the Registration Statement, which statements statement shall cover said 12-month periodsconform to the requirements of Rule 158;
(p) require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such selling Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. If the Registration Statement refers to any such Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar Federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the not file a Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.Sect
Appears in 3 contracts
Sources: Registration Rights and Stockholders' Agreement (America Online Latin America Inc), Registration Rights and Stockholders' Agreement (Aol Time Warner Inc), Registration Rights and Stockholders' Agreement (Banco Itau S A)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Section 3 hereofthe provisions of this Agreement, the Company will shall use its best efforts to effect such the registration to permit of the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously soon as possiblepracticable and as applicable:
(a) subject to Section 2(a), Section 2(b) and Section 2(c), prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become be declared effective; provided that before filing ;
(b) in the case of a Long-Form Registration Statement or Prospectus or any a Short-Form Registration, prepare and file with the Commission such amendments, post-effective amendments or and supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or until all of such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus disposed of and 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period Registrable Securities in accordance with the intended method or methods of distribution by the sellers thereof disposition set forth in such Registration Statement Statement;
(c) Within a reasonable time before filing such Registration Statement, Prospectus or supplement amendments or supplements thereto with the Commission, furnish to one counsel selected by holders of a majority of such Registrable Securities copies of such documents proposed to be filed, which documents shall be subject to the review, comment and approval of such counsel;
(d) notify each selling holder of Registrable Securities, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement, including a Shelf Supplement, to any Prospectus forming a part of such Registration Statement has been filed with the Commission;
(e) furnish to each selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto, including a Shelf Supplement (in each case including all exhibits and documents incorporated by reference therein), and such other documents as such seller may request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(f) use its best efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any selling holder requests and do any and all other acts and things which may be necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holders; provided, that the Company shall not be deemed required to have used its best efforts qualify generally to keep a Registration Statement effective during the applicable period if do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able otherwise be required to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and do so but for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of this Section 6(k5(f), if applicable;
(cg) notify the each selling holders holder of such Registrable Securities and the managing underwritersSecurities, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease when a Prospectus relating thereto is required to be true and correctdelivered under the Securities Act, (5) of the receipt by the Company 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit 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 fact necessary in order to make the statements therein made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(dh) make every reasonable effort available for inspection by any selling holder of Registrable Securities, any underwriter participating in any disposition pursuant to obtain such Registration Statement and any attorney, accountant or other agent retained by any such holder or underwriter (collectively, the withdrawal of any order suspending the effectiveness “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 requested by any such Inspector in connection with such Registration Statement at the earliest possible momentStatement;
(ei) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its best efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed or, if requested the Common Stock is not then listed, on a national securities exchange selected by the managing underwriter or underwriters or holders of a holder majority of such Registrable Securities being sold Securities;
(k) in connection with an underwritten offering, promptly incorporate enter into such customary agreements (including underwriting and lock-up agreements in a Prospectus supplement or post-effective amendment customary form) and take all such information other customary actions as the managing underwriters and the holders of a majority of the such Registrable Securities being sold agree should be included therein relating or the managing underwriter of such offering request in order to expedite or facilitate the plan disposition of distribution with respect to such Registrable Securities, Securities (including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms making appropriate officers of the underwritten Company available to participate in “road show” and other customary marketing activities (or best efforts underwritten) offering including one-on-one meetings with prospective purchasers 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendmentSecurities));
(fl) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and make available to its stockholders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than thirty (30) days after the end of the 12-month period beginning with the first day of the Company’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) furnish to each selling holder of Registrable Securities and each managing underwriter, without chargeif any, at least one signed copy with (i) a written legal opinion of the Registration Statement Company’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of the Company’s counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment theretoto the applicable Registration Statement and at the closing of the offering, including financial statements dated the respective dates of delivery thereof, a “comfort” letter signed by the Company’s independent certified public accountants in form and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference)substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(gn) deliver to each selling holder of Registrable Securities and the underwriterswithout limiting Section 5(f), if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the such Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof or the underwriters, if any, holders of such Registrable Securities to consummate the disposition of such Registrable SecuritiesSecurities in accordance with their intended method of distribution thereof;
(ko) upon notify the occurrence holders of Registrable Securities promptly of any event contemplated request by paragraph the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(c)(6p) aboveadvise the holders of Registrable Securities, prepare a supplement promptly after it shall receive notice or posteffective amendment to obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the related Prospectus initiation or threatening of any document incorporated proceeding for such purpose and promptly use its 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;
(q) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a “controlling person” (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) (a “Controlling Person”) of the Company, to participate in the preparation of such Registration Statement and to require the insertion therein by reference or file any other required document so thatof language, as thereafter delivered furnished to the purchasers Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(r) cooperate with the holders of the Registrable Securities, Securities to facilitate the Prospectus will not contain an untrue statement timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement or Rule 144 free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a material fact reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement or omit to state any material fact necessary to make the statements therein not misleadingRule 144;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(ms) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary The Depository Trust Company;
(nt) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite no direct or facilitate indirect action prohibited by Regulation M under the disposition of such Registrable Securities and in such connectionExchange Act; provided, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwritersthat, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, that any underwriter participating in any disposition pursuant prohibition is applicable to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees Company will take all reasonable action to supply all information reasonably requested by make any such representative, underwriter, attorney or accountant in connection with such registrationprohibition inapplicable; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;and
(pu) otherwise use its best efforts to comply with take all applicable rules and regulations of other steps necessary to effect the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicehereby.
Appears in 3 contracts
Sources: Registration Rights Agreement (210 Capital, LLC), Restructuring Support Agreement (Crossroads Systems Inc), Registration Rights Agreement (210/P10 Acquisition Partners, LLC)
Registration Procedures. In connection with the Company's registration obligations Whenever any Registrable Securities are to be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleshall have the following obligations:
(a) The Company shall prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;.
(b) The Company shall prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to the a Registration Statement as may be necessary to keep and the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by Prospectus used in connection with such Registration Statement have been sold; cause the Statement, which Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented is to be filed pursuant to Rule 424 promulgated under the Securities Act; and , as may be necessary to keep such Registration Statement effective at all times during the Effectiveness Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities of the Company covered by such Registration Statement during the applicable period until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement by reason of the Company filing a report on Form 10-QSB, Form 10-KSB or any analogous report under the Securities Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Securities Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(c) The Company shall furnish to each seller of Registrable Securities in any Registration Statement, without charge, (i) promptly after the same is prepared and filed with the Commission at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by such seller, all exhibits and each preliminary Prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the Prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such seller may reasonably request) and (iii) such other documents, including copies of any preliminary or final Prospectus, as such seller may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such seller.
(d) The Company shall use its best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by any seller of the Registrable Securities covered by a Registration Statement under such other securities or "blue sky" laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Effectiveness Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Effectiveness Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be deemed required in connection therewith or as a condition thereto to have used (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction.
(e) The Company shall use its best efforts to keep prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement effective during Statement, or the applicable period if it voluntarily takes any action that would result in selling holders suspension of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture qualification of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders any of Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Holder of any Registrable Securities being sold of the issuance of such order and the managing underwritersresolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(f) The Company shall notify the Holder in writing of the happening of any event, if anyas promptly as practicable after becoming aware of such event, promptlyas a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a 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 (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 2(r), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (if requested by any 10) copies of such Personsupplement or amendment to the Holder (or such other number of copies as the Holder may reasonably request).
(g) confirm such advice The Company shall promptly notify the Holder in writing, writing (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the and when a Registration Statement or any post-effective amendment, when amendment has become effective (notification of such effectiveness shall be delivered to the Holder by facsimile on the same has become effectiveday of such effectiveness and by overnight mail), (2ii) of any request by the SEC Commission for amendments or supplements to the a Registration Statement or the related Prospectus or for additional related information, and (3iii) of the issuance by Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(h) If the Commission Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, at the reasonable request of any stop order suspending such Holder, the Company shall furnish to such Holder, on the date of the effectiveness of such Registration Statement and thereafter from time to time on such dates as the Holder may reasonably request (i) a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Holder, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Holder.
(i) If the Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, then at the request of such Holder in connection with such Holder's due diligence requirements, the Company shall make available for inspection by (i) the Holder, (ii) the Holder’s legal counsel, and (iii) one firm of accountants or other agents retained by the Holder (collectively, the "Inspectors"), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to the Holder) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the initiation of any proceedings for that purposeSecurities Act, (4b) if at the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any time other agreement of which the representations and warranties Inspector has knowledge. 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 contemplated by paragraph and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (oor in any other confidentiality agreement between the Company and the Holder) below cease shall be deemed to be true limit the Holder's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and correctregulations.
(j) The Company shall hold in confidence and not make any disclosure of information concerning the Holder provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (5ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the receipt by the Company release of any notification with respect such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the suspension public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the qualification Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Holder and allow the Holder, at the Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(k) The Company shall use its best efforts either to (i) cause all of the Registrable Securities for sale in any jurisdiction covered by a Registration Statement to be listed on each securities exchange on which securities of the same class or series 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 (ii) secure designation and quotation of all of the Registrable Securities covered by a Registration Statement on The NASDAQ Global Market, The NASDAQ Capital Market or the initiation American Stock Exchange, or threatening of any proceeding (iii) if, despite the Company's best efforts to satisfy, the preceding clauses (i) and (ii) the Company is unsuccessful in satisfying the preceding clauses (i) and (ii), to secure the inclusion for quotation on the Over-the-Counter Bulletin Board for such purpose and (6) Registrable Securities and, without limiting the generality of the happening foregoing, to use its best efforts to arrange for at least two market makers to register with the National Association of any event which makes any statement made Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities. The Company shall pay all fees and expenses 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 in order to make the statements therein not misleading;connection with satisfying its obligation under this Section 2(k).
(dl) make every reasonable effort The Company shall cooperate with the Holder who hold Registrable Securities being offered and, to obtain the withdrawal extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any order suspending restrictive legend) representing the effectiveness of the Registrable Securities to be offered pursuant to a Registration Statement at and enable such certificates to be in such denominations or amounts, as the earliest possible moment;case may be, as the Holder may reasonably request and registered in such names as the Holder may request.
(em) if If requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringHolder, promptly the Company shall (i) as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should Holder reasonably requests to be included therein relating to the plan sale and distribution of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered or sold, the purchase price being paid therefor by such 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 (ii) as soon as practicable make all required filings of such Prospectus supplement or post-effective amendment as soon as after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by the Holder holding any Registrable Securities.
(fn) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) shall use its best efforts to cause the Registrable Securities covered by the applicable a 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 underwriters, if any, to consummate the disposition of such Registrable Securities;.
(ko) upon The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers close of the Registrable Securitiesperiod covered thereby, an earnings statement (in form complying with, and in the manner provided by, the Prospectus will not contain an untrue statement provisions of Rule 158 under the Securities Act) covering a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the a Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;.
(p) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of Commission in connection with any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; andregistration hereunder.
(q) promptly prior Within two (2) business days after a Registration Statement which covers Registrable Securities is ordered effective by the Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the filing of any document which is transfer agent for such Registrable Securities (with copies to be incorporated by reference into the Holder whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement or has been declared effective by the Prospectus Commission in the form attached hereto as Exhibit B and the Irrevocable Transfer Agent Instructions in the form attached hereto as Exhibit C.
(r) Notwithstanding anything to the contrary herein, at any time after initial filing the Effective Date of a Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Registration Statement)Board of Directors of the Company and its counsel, provide copies in the best interest of such document to the Company and, in the opinion of counsel to the selling holders Company, otherwise required (a "Grace Period"); provided, that the Company shall promptly (i) notify the Holder in writing of Registrable Securities and the existence of material, non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the managing underwritersHolder) and the date on which the Grace Period will begin, if anyand (ii) notify the Holder in writing of the date on which the Grace Period ends; and, make provided further, that no Grace Period shall exceed five (5) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of twenty (20) days and the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt first day of any Grace Period must be at least five (5) trading days after the last day of any prior Grace Period (each, an "Allowable Grace Period"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Holder receives the notice from referred to in clause (i) and shall end on and include the Company later of the happening of any event of date the kind described Holder receives the notice referred to in Section 6(kclause (ii) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of and the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised date referred to in writing (the "Advice") 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 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 provisions of Section 2(e) hereof shall not be applicable during the event period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall again be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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 bound by Section 6(k2(f) hereof or the Advice.with re
Appears in 3 contracts
Sources: Registration Rights Agreement (Catalyst Lighting Group Inc), Registration Rights Agreement (Catalyst Lighting Group Inc), Registration Rights Agreement (Catalyst Lighting Group Inc)
Registration Procedures. In connection with the Company's registration obligations Whenever any Registrable Securities are to be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleshall have the following obligations:
(a) The Company shall prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;.
(b) The Company shall prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to the a Registration Statement as may be necessary to keep and the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by Prospectus used in connection with such Registration Statement have been sold; cause the Statement, which Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented is to be filed pursuant to Rule 424 promulgated under the Securities Act; and , as may be necessary to keep such Registration Statement effective at all times during the Effectiveness Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities of the Company covered by such Registration Statement during the applicable period until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement by reason of the Company filing a report on Form 10-QSB, Form 10-KSB or any analogous report under the Securities Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Securities Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(c) The Company shall furnish to each seller of Registrable Securities in any Registration Statement, without charge, (i) promptly after the same is prepared and filed with the Commission at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by such seller, all exhibits and each preliminary Prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the Prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such seller may reasonably request) and (iii) such other documents, including copies of any preliminary or final Prospectus, as such seller may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such seller.
(d) The Company shall use its best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by any seller of the Registrable Securities covered by a Registration Statement under such other securities or "blue sky" laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Effectiveness Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Effectiveness Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be deemed required in connection therewith or as a condition thereto to have used (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction.
(e) The Company shall use its best efforts to keep prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement effective during Statement, or the applicable period if it voluntarily takes any action that would result in selling holders suspension of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture qualification of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders any of Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Holder of any Registrable Securities being sold of the issuance of such order and the managing underwritersresolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(f) The Company shall notify the Holder in writing of the happening of any event, if anyas promptly as practicable after becoming aware of such event, promptlyas a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a 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 (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 2(r), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (if requested by any 10) copies of such Personsupplement or amendment to the Holder (or such other number of copies as the Holder may reasonably request).
(g) confirm such advice The Company shall promptly notify the Holder in writing, writing (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the and when a Registration Statement or any post-effective amendment, when amendment has become effective (notification of such effectiveness shall be delivered to the Holder by facsimile on the same has become effectiveday of such effectiveness and by overnight mail), (2ii) of any request by the SEC Commission for amendments or supplements to the a Registration Statement or the related Prospectus or for additional related information, and (3iii) of the issuance by Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(h) If the Commission Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, at the reasonable request of any stop order suspending such Holder, the Company shall furnish to such Holder, on the date of the effectiveness of such Registration Statement and thereafter from time to time on such dates as the Holder may reasonably request (i) a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Holder, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Holder.
(i) If the Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, then at the request of such Holder in connection with such Holder's due diligence requirements, the Company shall make available for inspection by (i) the Holder, (ii) the Holder's legal counsel, and (iii) one firm of accountants or other agents retained by the Holder (collectively, the "Inspectors"), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to the Holder) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the initiation of any proceedings for that purposeSecurities Act, (4b) if at the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any time other agreement of which the representations and warranties Inspector has knowledge. 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 contemplated by paragraph and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (oor in any other confidentiality agreement between the Company and the Holder) below cease shall be deemed to be true limit the Holder's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and correctregulations.
(j) The Company shall hold in confidence and not make any disclosure of information concerning the Holder provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (5ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the receipt by the Company release of any notification with respect such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the suspension public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the qualification Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Holder and allow the Holder, at the Holder's expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(k) The Company shall use its best efforts either to (i) cause all of the Registrable Securities for sale in any jurisdiction covered by a Registration Statement to be listed on each securities exchange on which securities of the same class or series 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 (ii) secure designation and quotation of all of the Registrable Securities covered by a Registration Statement on The NASDAQ Global Market, The NASDAQ Capital Market or the initiation American Stock Exchange, or threatening of any proceeding (iii) if, despite the Company's best efforts to satisfy, the preceding clauses (i) and (ii) the Company is unsuccessful in satisfying the preceding clauses (i) and (ii), to secure the inclusion for quotation on the Over-the-Counter Bulletin Board for such purpose and (6) Registrable Securities and, without limiting the generality of the happening foregoing, to use its best efforts to arrange for at least two market makers to register with the National Association of any event which makes any statement made Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities. The Company shall pay all fees and expenses 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 in order to make the statements therein not misleading;connection with satisfying its obligation under this Section 2(k).
(dl) make every reasonable effort The Company shall cooperate with the Holder who hold Registrable Securities being offered and, to obtain the withdrawal extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any order suspending restrictive legend) representing the effectiveness of the Registrable Securities to be offered pursuant to a Registration Statement at and enable such certificates to be in such denominations or amounts, as the earliest possible moment;case may be, as the Holder may reasonably request and registered in such names as the Holder may request.
(em) if If requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringHolder, promptly the Company shall (i) as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should Holder reasonably requests to be included therein relating to the plan sale and distribution of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered or sold, the purchase price being paid therefor by such 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 (ii) as soon as practicable make all required filings of such Prospectus supplement or post-effective amendment as soon as after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by the Holder holding any Registrable Securities.
(fn) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) shall use its best efforts to cause the Registrable Securities covered by the applicable a 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 underwriters, if any, to consummate the disposition of such Registrable Securities;.
(ko) upon The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers close of the Registrable Securitiesperiod covered thereby, an earnings statement (in form complying with, and in the manner provided by, the Prospectus will not contain an untrue statement provisions of Rule 158 under the Securities Act) covering a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the a Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;.
(p) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of Commission in connection with any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; andregistration hereunder.
(q) promptly prior Within two (2) business days after a Registration Statement which covers Registrable Securities is ordered effective by the Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the filing of any document which is transfer agent for such Registrable Securities (with copies to be incorporated by reference into the Holder whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement or has been declared effective by the Prospectus Commission in the form attached hereto as Exhibit B and the Irrevocable Transfer Agent Instructions in the form attached hereto as Exhibit C.
(r) Notwithstanding anything to the contrary herein, at any time after initial filing the Effective Date of a Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Registration Statement)Board of Directors of the Company and its counsel, provide copies in the best interest of such document to the Company and, in the opinion of counsel to the selling holders Company, otherwise required (a "Grace Period"); provided, that the Company shall promptly (i) notify the Holder in writing of Registrable Securities and the existence of material, non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the managing underwritersHolder) and the date on which the Grace Period will begin, if anyand (ii) notify the Holder in writing of the date on which the Grace Period ends; and, make provided further, that no Grace Period shall exceed five (5) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of twenty (20) days and the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt first day of any Grace Period must be at least five (5) trading days after the last day of any prior Grace Period (each, an "Allowable Grace Period"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Holder receives the notice from referred to in clause (i) and shall end on and include the Company later of the happening of any event of date the kind described Holder receives the notice referred to in Section 6(kclause (ii) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of and the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised date referred to in writing (the "Advice") 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 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 provisions of Section 2(e) hereof shall not be applicable during the event period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall again be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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 bound by Section 6(k2(f) hereof or the Advice.with re
Appears in 3 contracts
Sources: Registration Rights Agreement (Forex365, Inc.), Registration Rights Agreement (Forex365, Inc.), Registration Rights Agreement (Forex365, Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided PROVIDED that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided PROVIDED that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided PROVIDED that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (LTC Equity Holding Co Inc), Registration Rights Agreement (LTC Healthcare Inc)
Registration Procedures. In (a) If and whenever the Company is required to use reasonable efforts to effect the registration of any Registrable Securities under the Securities Act and in connection with the Company's registration obligations any distribution of Registered Securities pursuant to Section 3 hereofthereto as provided in this Agreement, the Company will shall as promptly as reasonably practicable, subject to the other provisions of this Agreement:
(i) use its best reasonable efforts to prepare and file with the SEC a Registration Statement to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, of such securities and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and thereafter use best reasonable efforts to cause such Registration Statement to become effectiveand remain effective pursuant to the terms of this Article V; provided provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto, the Company will furnish to the holders of the which are including Registrable Securities covered by in such Registration Statement and the underwriters, if anyregistration (“Selling Holders”), copies of all such documents proposed to be filed, which documents will be subject to the review and reasonable review of such holders and underwriters, and comment (which comments will be considered in good faith by the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority Company) of the Registrable Securities covered by such Registration Statement or the underwriters, counsel (if any, shall reasonably object) to such holders;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary and to the extent required by applicable law to keep the such Registration Statement effective and Available pursuant to the terms of this Article V;
(iii) use 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;
(iv) use reasonable efforts to provide and cause to be maintained a transfer agent and registrar for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause from and after a date not later than 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 effective date of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(cv) as promptly as practicable notify in writing the selling holders of Registrable Securities and of the managing underwritersfollowing events: (A) the filing of the Registration Statement, if anyany amendment thereto, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment has been filedto such Registration Statement, and, with respect to the such Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ; (2B) of any request by the SEC or any other U.S. or state governmental authority for amendments or supplements to the such Registration Statement or the Prospectus prospectus or for additional information, ; (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement or the initiation of any proceedings by any person for that purpose, ; (4D) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or “blue sky” laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose purpose; and (6E) of upon the happening of any event which that makes any statement made in the such Registration Statement, the Prospectus Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such registration statement, prospectus or documents so that, in the case of such Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not 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 necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(dvi) make every use reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of such Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;
qualification (eor exemption from qualification) if 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 underwriters and the holders of a majority any of the Registrable Securities being sold agree should for sale in any jurisdiction at the earliest reasonable practicable date, except that the Company shall not for any such purpose be included therein relating required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the plan requirements of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten this clause (or best efforts underwrittenix) offering of the Registrable Securities be obligated to be sold so qualified, (B) subject itself to taxation in any such offering; and make all required filings jurisdiction or (C) file a general consent to service of process in any such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendmentjurisdiction;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hvii) prior to any public offering of Registrable Securities, use reasonable efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel Selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky sky” laws of such those jurisdictions within the United States as any seller or underwriter holder reasonably requests in writing and do any and all other acts to keep each such registration or things necessary qualification (or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by exemption therefrom) effective until the Registration StatementTermination Date; provided provided, that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction where wherein it is would not then but for the requirements of this clause (xi) be obligated to be so qualified qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;jurisdiction; and
(iviii) use reasonable efforts to cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be sold delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by the Indenture and not bearing any applicable law, of all restrictive legends; , and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters any such holders may request at least two business days prior in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause to be delivered to its transfer agent when and as required by such transfer agent from time to time, any authorizations, certificates, directions and other evidence required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such shares of Registrable Securities to under the underwriters;Registration Statement.
(jb) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as The Company may be necessary to enable the seller or sellers thereof or the underwritersrequire each Selling Holder and each underwriter, if any, to consummate the disposition of such Registrable Securities;
(ki) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by furnish the Company are then listed if requested by in writing such information regarding each Selling Holder or underwriter and the holders of a majority distribution of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writingwriting to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. Each holder If the Company requests that the holders of Registrable Securities agrees by acquisition take any of the actions referred to in this Section 5.03(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such Registrable Securities that, request.
(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 clauses (B), (C), (D) and (E) of Section 6(k) hereof5.03(a)(v), such holder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable Registration Statement and prospectus relating thereto until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it Selling Holder is advised in writing (the "Advice") by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use reasonable efforts to cure the Prospectusevents described in clauses (B), and(C), if (D) and (E) of Section 5.03(a)(v) so directed by that the Company, such holder will deliver to use of the Company (applicable prospectus may be resumed 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Adviceearliest reasonably practicable moment.
Appears in 2 contracts
Sources: Purchase Agreement (2U, Inc.), Purchase Agreement (2U, Inc.)
Registration Procedures. In connection with the Company's registration obligations filing of any Registration Statement pursuant to Section Sections 2 or 3 hereof, the Company will use its best efforts to shall (and shall cause each Guarantor to) effect such registration registrations to permit the sale of such Registrable Securities securities covered thereby in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company will as expeditiously as possible:hereunder, the Company shall (and shall cause each Guarantor to):
(a) prepare Prepare and file with the SEC, SEC as soon as practicablepracticable after the date hereof but in any event on or prior to the Filing Date, a the Exchange Offer Registration Statement or if the Exchange Offer Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale Statement is not filed because of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required circumstances contemplated by the SEC to be filed therewithSection 2(i), cooperate and assist in any filings required to be made with the NASDa Shelf Registration Statement as prescribed by Section 3, and use its best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided that that, if (1) a Shelf Registration Statement is filed pursuant to Section 3 or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto, before filing a any Registration Statement or Prospectus or any amendments or supplements theretothereto the Company shall (and shall cause each Guarantor to), if requested, furnish to and afford the Holders of the Transfer Restricted Securities to be registered pursuant to such Shelf Registration Statement Statement, each Participating Broker-Dealer, the managing underwriters, if any, and each of their respective counsel, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five Business Days prior to such filing). The Company will furnish and each Guarantor shall not file any such Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Holders must provide information for the inclusion therein without the Holders being afforded an opportunity to review such documentation if the holders of a majority in aggregate principal amount of the Registrable Transfer Restricted Securities covered by such Registration Statement and Statement, or any such Participating Broker-Dealer, as the case may be, the managing underwriters, if any, copies or any of all their respective counsel shall reasonably object in writing on a timely basis. A Holder shall be deemed to have reasonably objected to such documents filing if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders contains an untrue statement of a majority material fact or omits to state any material fact necessary to make the statements therein not misleading or fails to comply with the applicable requirements of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;Act.
(b) prepare Provide an indenture trustee for the Transfer Restricted Securities or the Exchange Notes, as the case may be, and cause the Indenture (or other indenture relating to the Transfer Restricted Securities) to be qualified under the TIA not later than the effective date of the first Registration Statement; and in connection therewith, to effect such changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use its best efforts to cause such trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments and post-effective amendments to the each Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be, as may be necessary to keep the such Registration Statement continuously effective for the applicable periodEffectiveness Period or the Applicable Period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldas the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act and the Exchange Act applicable to them with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus. The Company and each Guarantor shall not, during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it Applicable Period, voluntarily takes take any action that would result in selling holders Holders of the Registrable Transfer Restricted Securities covered thereby by a Registration Statement or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Transfer Restricted Securities or such Exchange Notes during that period period, unless such action is required under by applicable law, provided that the foregoing shall not apply to actions taken rule or regulation or permitted by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein not misleading;this Agreement.
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if 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 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 Furnish to such Registrable Securitiesselling Holders and Participating Broker-Dealers who so request in writing (i) upon the Company’s receipt, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed a copy of the order of the SEC declaring such Registration Statement and any post-effective amendment theretothereto effective, (ii) such reasonable number of copies of such Registration Statement and of each amendment and supplement thereto (in each case including financial statements and schedules, all any documents incorporated therein by reference and all exhibits (including those incorporated by referenceexhibits);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.,
Appears in 2 contracts
Sources: Registration Rights Agreement (RAAM Global Energy Co), Registration Rights Agreement (Windstar Energy, LLC)
Registration Procedures. In connection with the Company's ’s registration obligations pursuant to Section 3 hereof, the Company company will use its best efforts to effect such registration registrations to permit the sale of such the Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements relating to the applicable registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of the Registration Statement, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority of the aggregate principal amount of Registrable Securities covered by such Registration registration Statement or the underwriter or underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such pre-effective amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed with the SEC pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of to the Registration Statement or for the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (65) 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 in order to make the statements therein 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 moment;
(e) if 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 aggregate principal amount of Registrable Securities being sold agree should be included therein relating to the plan sale of distribution with respect to such the Registrable Securities, including, without limitation, information with respect to the number principal amount of Registrable Securities being sold to such underwriter or underwriters, the purchase price First Purchase Price and Loan Amount 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwritersto each underwriter, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities securities and the underwriterseach underwriter, if any, in connection with the offering and sale of the Registrable registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided provided, however, 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and sold, which certificates shall not bearing bear any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriter or underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of or such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(65)(c)(5) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers Note Holders of the Registrable Securities, 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 not misleading;
(l) use its best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of the aggregate principal amount of such Registrable Securities or the managing underwriter or underwriters, if any;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such customary agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an a best efforts underwritten registration offering to (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter or underwriters, if any, and the holders of a majority of the aggregate principal amount of Registrable Securities being sold) addressed to each selling holder and the underwriter or underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; and (32) obtain "“cold comfort" ” letters and updates thereof from the Company's ’s independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriter or underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters received by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(o) make available for inspection by a representative of the holders of a majority of the aggregate principal amount of Registrable Securities, any underwriter participating in any disposition pursuant to any such registrationRegistration Statement, and any attorney or accountant retained by the sellers or underwriterunderwriters, if any, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with any such registrationRegistration Statement; provided provided, however, that any non-public records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or underwriters in a firm or best efforts underwritten offering, or (2) if not sold to an underwriter or underwriters in such an offering, beginning with the first month of the Company's company’s first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected affected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k5(c)(3) or 5(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's ’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5(c)(3) or 5(k) hereof, or until it is advised in writing (the "“Advice"”) 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, and if so directed by the Company, such holder will deliver to the Company (at the Company's ’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 regarding the maintenance of such the effectiveness of Registration Statement filed pursuant to Section 3 hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(65(c)(3) or 5(c)(5) hereof to 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 Prospectus contemplated by Section 6(k5(k) hereof or the Advice. If for any other reason the effectiveness of any Registration Statement filed pursuant to Section 3 hereof is suspended or interrupted prior to the expiration of the time period regarding the maintenance of the effectiveness of such Registration Statement required by such Section 3 so that Registrable Securities may not be sold pursuant thereto, the applicable time periods shall be extended by the number of days equal to the number of days during the period beginning with and including the date of such suspension or interruption to and including the date when the sale of Registrable Securities pursuant to such Registration Statement may be recommenced.
Appears in 2 contracts
Sources: Registration Rights Agreement (Neutra Corp.), Registration Rights Agreement (Aristocrat Group Corp.)
Registration Procedures. In connection with the (a) With respect to any Piggyback Registration, Company's registration obligations pursuant , subject to Section 3 hereofsubsections 2(e) above, the Company will respectively, shall use its best reasonable efforts to effect such the registration of all Executive's Parity Registrable Shares that Executive has requested to permit the sale of such Registrable Securities be included therein in accordance accordance, subject to subsections 2(d), with the intended method or methods method(s) of distribution thereofthereof reasonably promptly, and pursuant thereto in connection with any such request, Company shall do the Company will as expeditiously as possiblefollowing:
(a1) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements registration statement on any appropriate form under the Securities Act, for which form shall be Company then qualifies and that is available for the sale registration of the Registrable Securities Shares requested to be registered in accordance with the intended method or methods method(s) of distribution thereof thereof, include (subject to subsections 2(d) and shall include 2(e) above) in the registration on such form all financial statements required by the SEC Registrable Shares requested to be filed therewith, cooperate and assist in any filings required to be made with the NASDincluded, and use best reasonable efforts to cause such Registration Statement registration statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b2) prepare and file with the SEC such amendments and post-effective amendments and supplements to the Registration Statement registration statement or any prospectus as may be necessary to keep the Registration Statement registration statement effective for a period that shall terminate on the applicable period, earlier of forty-five (45) days after the registration statement is officially declared effective by the SEC or such shorter period which will terminate when all Executive's Parity Registrable Securities Shares covered by such Registration Statement registration statement have been sold; 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 Actdisposed of; and comply with all applicable rules and regulations of the SEC and with the provisions of the Securities Act applicable to Company with respect to the disposition of all securities Executive's Parity Registrable Shares covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof Executive set forth in such Registration Statement registration statement (as it may be amended) or any supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableprospectus;
(c3) notify the selling holders of Registrable Securities and the managing underwritersExecutive, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time when a prospectus relating to Executive's Parity Registrable Shares covered by the representations and warranties registration statement is required to be delivered under the Securities Act, of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) of the happening occurrence of any event as a result of which makes any the preliminary prospectus or prospectus included in such registration statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference prospectus supplement contains any untrue statement of a material fact or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order omits to state a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading;
(d) make every reasonable effort to obtain , and Company shall, as promptly as reasonably practicable thereafter, prepare and file with the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if 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 underwriters SEC 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare Executive a supplement or posteffective amendment to the Registration Statement such preliminary prospectus, prospectus or the related Prospectus or any document incorporated therein by reference or file any other required document prospectus supplement so that, as thereafter delivered to the prospective purchasers of the Executive' Parity Registrable SecuritiesShares being distributed by Executive, the Prospectus will such preliminary prospectus, prospectus or prospectus supplement shall not contain an any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l4) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by Executive, Company shall cooperate and shall promptly incorporate in a prospectus supplement or post-effective amendment to the holders registration statement at Executive's cost and expense such information concerning Executive and its intended method of a majority distribution as it reasonably requests to be included therein (and which is not inappropriate, in the reasonable judgment of Company, after consultation with its outside legal counsel), including, without limitation, with respect to any change in the intended method of distribution, the amount or kind of Parity Registrable Shares being offered by Executive, the offering price for such Parity Registrable Shares or any other terms of the offering or distribution of the Registrable Shares and make all required filings of such Registrable Securities prospectus supplement or post-effective amendment as soon as possible after being notified of the managing underwriters, if anymatters to be incorporated in such prospectus supplement or post-effective amendment;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement on or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document date on which the registration statement is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)declared effective, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.use
Appears in 2 contracts
Sources: Employment Agreement (Powercerv Corp), Employment, Noncompetition, Development and Confidentiality Agreement (Powercerv Corp)
Registration Procedures. In connection with Whenever any Representative Holder or the Company's registration obligations Investors (each, a “Registering Security Holder”) requests that any Registrable Securities be registered pursuant to Section 3 hereof5.1 or Section 5.2, the Company will use its best reasonable efforts to effect such the registration to permit the sale of such Registrable Securities in accordance with as promptly as is practicable, including the intended method or methods of distribution thereof, and pursuant thereto the following:
(a) The Company will as expeditiously as possible:
(a) possible prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any form for which the Company then qualifies and which counsel for the Company deems appropriate form under the Securities Act, which form shall be and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use best its commercially reasonable efforts to cause such filed Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, and remain effective for the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;period specified herein.
(b) The Company will prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified herein; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify The Company will, prior to filing such Registration Statement or any amendment or supplement thereto, furnish to the selling holders of Registrable Securities Registering Security Holder and the each applicable managing underwritersApproved Underwriter, if any, promptlycopies thereof, and thereafter furnish to the Registering Security Holder and each such Approved Underwriter, if any, such number of copies of such Registration Statement, amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein) and the Prospectus included in such Registration Statement (including each preliminary Prospectus) as the Registering Security Holder or each such Approved Underwriter may reasonably request in order to facilitate the sale of the Registrable Securities.
(d) After the filing of the Registration Statement, the Company will promptly notify the Registering Security Holder of any stop order issued suspending the effectiveness of the Registration Statement or, to the Company’s knowledge, threatened to be issued by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(e) The Company will endeavor to qualify the Registrable Securities for offer and sale under such other securities or blue sky Laws of such jurisdictions in the United States as the Registering Security Holder or managing Approved Underwriter reasonably requests; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5.4(e), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction.
(f) The Company will as promptly as is practicable notify the Registering Security Holder at any time (and if requested by any such Person) Person confirm such advice notice in writing), (1i) when a Prospectus relating to the sale of the Registrable Securities is required by Law to be delivered in connection with sales by an Approved Underwriter or dealer, (ii) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become been declared or becomes effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3iii) of the issuance by the Commission occurrence of any stop order suspending event requiring the effectiveness preparation of 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 material fact required to be stated therein or necessary to make the statements therein, in the light of the Registration Statement circumstances under which they were made, not misleading and promptly make available to the Registering Security Holder and to the Approved Underwriters any such supplement or the initiation of any proceedings for that purposeamendment, (4iv) if at any time the representations and warranties of the Company contained in any agreement contemplated by paragraph Section 5.4(h) hereof (oincluding any underwriting agreement) below cease to be true and correct, (5v) of any request by the SEC or any other Governmental Authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6vii) 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 in order to make the statements therein 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 moment;
(e) if requested by the managing underwriter or underwriters or Company’s determination that 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 underwriters and the holders of to 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not would 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Companyappropriate. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Registering Security Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 6(k) hereofthe preceding sentence, the Registering Security Holder will, if directed by the Company in such holder will notice, forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder's receipt by the Registering Security Holder and the Approved Underwriters of the copies of the such supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 the Registering Security Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's the Registering Security Holder’s possession, of the most recent Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any gives such notice, the time periods regarding Company will extend the maintenance of period during which such Registration Statement shall will be extended deemed effective as contemplated by Section 5.4(a) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by the Company will make available to the Registering Security Holder such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(kProspectus.
(g) hereof The Company will use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Advicelifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment.
(h) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities.
(i) The Company will, upon the reasonable request of the Registering Security Holder and the managing Approved Underwriter, use its reasonable best efforts to cause to be furnished to the Registering Security Holder and to each Approved Underwriter a signed counterpart, addressed to the Registering Security Holder or such Approved Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters (and updates thereof) from the Company’s independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the Registering Security Holder or the managing Approved Underwriter may reasonably request.
(j) The Company will make generally available to its Security Holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations of the SEC thereunder applicable thereto.
(k) The Company will use commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar Securities issued by the Company are then listed or, if not so listed, on a national securities exchange or quoted on any national quotation system.
(l) Each Security Holder who is an officer, director or employee of the Company will use reasonable best efforts to take all actions, including making himself or herself available to participate and, if requested by the Board (or its designee), participating in any roadshow or other investor presentation, necessary to expedite or facilitate the sale of such Registrable Securities.
Appears in 2 contracts
Sources: Security Holders Agreement, Security Holders Agreement (Skullcandy, Inc.)
Registration Procedures. In connection with If and whenever the Company's Company is required to effect the registration obligations of any Registrable Securities pursuant to Section 3 hereofthis Agreement, the Company will shall use its best efforts to effect such registration to permit and facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable and, and pursuant thereto thereto, the Company will shall as expeditiously as possiblepossible and as applicable:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Actwith respect to such Registrable Securities, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include make all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with in connection therewith and (if the NASD, and Registration Statement is not automatically effective upon filing) use its reasonable best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objecteffective as promptly as practicable;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the any Registration Statement and the Prospectus used in connection therewith as may be (i) reasonably requested by any selling S▇▇▇▇ Family Stockholder (to the extent such request relates to information relating to such S▇▇▇▇ Family Stockholder), or (ii) necessary to keep the such Registration Statement effective for until all of the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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; disposed of and comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all securities the Registrable Securities covered by such Registration Statement;
(c) before filing a Registration Statement during or Prospectus, or any amendments or supplements thereto and in connection therewith, furnish to the applicable period managing underwriter or underwriters, if any, and to each S▇▇▇▇ Family Stockholder participating in the registration, without charge, such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto (in each case including all exhibits thereto and all documents incorporated by reference therein) and such other documents as such Stockholder may reasonably request, including in order to facilitate the disposition of the Registrable Securities owned by such S▇▇▇▇ Family Stockholder, which documents will be subject to the review of such underwriters and such Stockholders and their respective counsel, and not file any Registration Statement or Prospectus or amendments or supplements thereto to which the S▇▇▇▇ Family Stockholders covered by the same or the underwriter or underwriters, if any, shall reasonably object;
(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky Laws of such U.S. jurisdiction(s) as any S▇▇▇▇ Family Stockholder participating in the registration or any managing underwriter reasonably requests and do any and all other acts and things that may be necessary or reasonably advisable to enable such Stockholder and each underwriter, if any, to consummate the disposition of such S▇▇▇▇ Family Stockholder’s Registrable Securities in such jurisdiction(s); provided, that the Company shall not be required to qualify generally to do business, subject itself to taxation or consent or subject itself to general service of process in any jurisdiction where it would not otherwise be required to do so but for its obligations pursuant to this Section 4.7(d);
(e) use its reasonable best efforts to cause all Registrable Securities covered by any Registration Statement to be registered with or approved by such other Governmental Entities or self-regulatory bodies as may be necessary or reasonably advisable in light of the business and operations of the Company to enable each S▇▇▇▇ Family Stockholder participating in the registration to consummate the disposition of such Registrable Securities in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectusdisposition thereof; provided, that the Company shall not be deemed required to have used qualify generally to do business, subject itself to taxation or consent or subject itself to general service of process in any jurisdiction where it would not otherwise be required to do so but for its best efforts obligations pursuant to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of this Section 6(k4.7(e), if applicable;
(cf) promptly notify each S▇▇▇▇ Family Stockholder participating in the selling holders of Registrable Securities registration and the managing underwritersunderwriters of any underwritten offering:
(i) each time when the Registration Statement, if anyany pre-effective amendment thereto, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed, filed and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ;
(2ii) of any oral or written comments by the SEC or of 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 any additional information, information regarding such Stockholder;
(3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement or the initiation or threatening of any proceedings for that any such purpose, ; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction under the applicable securities or the initiation or threatening blue sky Laws of any proceeding for such purpose and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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)jurisdiction;
(g) deliver notify each S▇▇▇▇ Family Stockholder participating in such registration, at any time when a Prospectus relating thereto is required to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale be delivered under the securities or blue sky laws Securities Act, upon becoming aware of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) abovethat would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or to omit any fact necessary to make the statements made therein not misleading in light of the circumstances under which they were made, prepare and, as promptly as practicable, prepare, file with the SEC and furnish to such Stockholder a reasonable number of copies of a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made;
(lh) cause all in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, any order suspending or preventing the use of any related Prospectus or any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction, use its best efforts to promptly obtain the withdrawal or lifting of any such order or suspension;
(i) not 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, that refers to any S▇▇▇▇ Family Stockholder covered thereby by name or otherwise identifies such S▇▇▇▇ Family Stockholder as the holder of any securities of the Company without the consent of such S▇▇▇▇ Family Stockholder (such consent not to be unreasonably withheld or delayed), unless and to the extent such disclosure is required by Law; provided, that (i) each Stockholder shall furnish to the Company in writing such information regarding itself and the distribution proposed by it as the Company may reasonably request for use in connection with a Registration Statement or Prospectus and (ii) each S▇▇▇▇ Family Stockholder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished to the Company by such S▇▇▇▇ Family Stockholder (including with respect to any inaccuracy in any representations or warranties made by such Stockholder in any underwriting agreement) or of the occurrence of any event that would cause the Registration Statement or the Prospectus included in such Registration Statement to contain an untrue statement of a material fact regarding such Stockholder or the distribution of such Registrable Securities or to omit to state any material fact regarding such S▇▇▇▇ Family Stockholder or the distribution of such Registrable Securities required to be stated therein or necessary to make the statements made therein not misleading in light of the circumstances under which they were made and to furnish to the Company, as promptly as practicable, any additional information required to correct and update the information previously furnished by such Stockholder such that such Registration Statement and Prospectus shall not contain any untrue statement of a material fact regarding such S▇▇▇▇ Family Stockholder or the distribution of such Registrable Securities or omit to state a material fact regarding such S▇▇▇▇ Family Stockholder or the distribution of such Registrable Securities necessary to make the statements therein not misleading in light of the circumstances under which they were made;
(j) cause such Registrable Securities to be listed on each securities exchange on which similar the Common Stock is then listed or, if the Common Stock is not then listed on any securities issued exchange, use its reasonable best efforts to cause such Registrable Securities to be listed on a national securities exchange selected by the Company are then listed if requested by after consultation with the holders of Stockholders participating in such registration;
(k) provide a majority of transfer agent and registrar (which may be the same entity) for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(ol) make available for inspection by a representative of any S▇▇▇▇ Family Stockholder participating in the holders of a majority of the Registrable Securitiesregistration, upon reasonable notice at reasonable times and for reasonable periods, any underwriter participating in any disposition underwritten offering pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by the sellers any such S▇▇▇▇ Family Stockholder or underwriter, all corporate documents, financial and other recordsrecords relating to the Company and its business reasonably requested by such S▇▇▇▇ Family Stockholder or underwriter, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeS▇▇▇▇ Family Stockholder, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationregistration or offering and make senior management of the Company and the Company’s independent accountants available for customary due diligence and drafting sessions; provided provided, that any records, Person gaining access to information or documents that are designated by personnel of the Company pursuant to this Section 4.7(l) shall (i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business and (ii) protect the confidentiality of any information regarding the Company which the Company determines in writing as good faith to be confidential shall be kept confidential by and of which determination such Persons unless disclosure of such recordsPerson is notified, information or documents is required by court or administrative orderpursuant to customary confidentiality agreements reasonably acceptable to the Company;
(pm) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holdersstockholders, as soon as reasonably practicable, an earnings statements satisfying statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act, no later than 45 days after Act and Rule 158 under the end Securities Act or any successor rule thereto) covering the period of any at least twelve (12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, months beginning with the first month day of the Company's ’s first full fiscal quarter commencing after the effective date of the applicable Registration Statement, which statements requirement shall cover said 12be deemed satisfied if the Company timely files complete and accurate information on Forms 10-month periodsK, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(n) in the case of an underwritten offering of Registrable Securities, promptly incorporate in a supplement to the Prospectus or a post-effective amendment to the Registration Statement such information as is reasonably requested by the managing underwriter(s) or any S▇▇▇▇ Family Stockholder participating in such underwritten offering to be included therein, the purchase price for the securities to be paid by the underwriters and any other applicable terms of such underwritten offering (and the S▇▇▇▇ Family Stockholders shall promptly supply any such information within their possession), and promptly make all required filings of such supplement or post-effective amendment;
(o) in the case of an underwritten offering of Registrable Securities, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as any S▇▇▇▇ Family Stockholder participating in such offering or the managing underwriter(s) of such offering reasonably requests in order to expedite or facilitate the disposition of such Registrable Securities;
(p) in the case of an underwritten offering of Registrable Securities, furnish to each underwriter, if any, participating in an offering of Registrable Securities (i) (A) all legal opinions of outside counsel to the Company required to be included in the Registration Statement and (B) a written legal opinion of outside counsel to the Company, dated the closing date of the offering, in form and substance as is customarily given in opinions of outside counsel to the Company to underwriters in underwritten registered offerings; and (ii) (A) obtain all consents of independent public accountants required to be included in the Registration Statement and (B) on the date of the execution of the applicable underwriting agreement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort letter” signed by the Company’s independent public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(q) in the case of an underwritten offering of Registrable Securities, make senior management of the Company available, to the extent requested by the managing underwriter(s), to assist in the marketing of the Registrable Securities to be sold in such underwritten offering, including the participation of such members of senior management of the Company in “road show” presentations and other customary marketing activities, including “one- on-one” meetings with prospective purchasers of the Registrable Securities to be sold in such underwritten offering (with an understanding that these shall be scheduled in a collaborative manner so as not to unreasonably interfere with the conduct of business of the Company), and otherwise facilitate, cooperate with, and participate in such underwritten offering and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary underwritten registered offering of its Common Stock;
(r) cooperate with the S▇▇▇▇ Family Stockholders to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the S▇▇▇▇ Family Stockholders may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(s) not later than the effective date of such Registration Statement, provide a CUSIP number for all Registrable Securities covered thereby and provide the applicable transfer agent with printed certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(t) upon the request of any S▇▇▇▇ Family Stockholder, promptly amend any Shelf Registration Statement or take such other action as may be necessary to de-register, remove or withdraw all or a portion of such S▇▇▇▇ Family Stockholder’s shares of Common Stock from a Shelf Registration Statement, as requested by such Stockholder; and
(qu) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the otherwise 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.it
Appears in 2 contracts
Sources: Stockholders' Agreement (First Interstate Bancsystem Inc), Stockholders Agreement (First Interstate Bancsystem Inc)
Registration Procedures. In connection with If and whenever the Company's Company is required to use its commercially reasonable efforts to effect the registration obligations pursuant to of any Registrable Securities under the Securities Act as provided in Section 3 and Section 4 hereof, the Company will use its best efforts to shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall cooperate in the sale of the securities and shall, as expeditiously soon as possibleis reasonably practicable:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate such form under the Securities Act, which form shall be available for the offer and sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith(including without limitation, cooperate and assist in any filings required to be made with the NASDa Partner Distribution), and use best its commercially reasonable efforts to cause such Registration Statement to become effectiveeffective and to remain effective as provided herein; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will shall furnish or otherwise make available to the holders of the Registrable Securities covered by such Registration Statement Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the . The Company will shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement amendments or supplements thereto with respect to a Demand Registration to which the holders of a majority of the Registrable Securities covered by such Registration Statement Statement, their counsel, or the managing underwriters, if any, shall reasonably object;, in writing, on a timely basis, unless, in the opinion of the Company, such filing is necessary to comply with applicable law.
(bi) prepare If such Registration Statement is a Shelf Registration Statement, subject to any notice by the Company in accordance with this Section 6(b) of the existence of any fact or event of the kind described in Section 6(d)(vi), use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective during the Effectiveness Period; upon the occurrence of any event that would cause the Shelf Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of the Registrable Securities covered thereby during the Effectiveness Period, the Company shall file promptly an appropriate amendment to the Shelf Registration Statement, a supplement to the Prospectus or a report filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A) of this Section 6(b)(i), correcting any such misstatement or omission, and, in the case of either clause (A) or (B) of this Section 6(b)(i), use its commercially reasonable efforts to cause such amendment to be declared effective and the Shelf Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter.
(ii) Notwithstanding Section 6(b)(i) hereof, the Company may suspend the effectiveness of the Shelf Registration Statement (each such period, a “Suspension Period”) (A) if a majority of the Company’s Board of Directors, in good faith, determines that such registration and offering would reasonably be expected to materially adversely affect or materially interfere with any bona fide material financing of the Company or any material transaction under consideration by the Company, or would render the Company unable to comply with the requirements under the Securities Act or the Exchange Act, or would require disclosure of information that has not been disclosed to the public, the premature disclosure of which would materially adversely affect the Company; or (B) if a majority of the Company’s Board of Directors, in good faith, determines that the Company is required by law, rule or regulation to supplement the Shelf Registration Statement or file a post-effective amendment to the Shelf Registration Statement in order to incorporate information into the Shelf Registration Statement for the purpose of (1) including in the Shelf Registration Statement any Prospectus required under Section 10(a)(3) of the Securities Act, (2) reflecting in the Prospectus included in the Shelf Registration Statement any facts or events arising after the effective date of the Shelf Registration Statement (or the most recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus, or (3) including in the Prospectus included in the Shelf Registration Statement any material information with respect to the plan of distribution not disclosed in the Shelf Registration Statement or any material change to such information. Upon the occurrence of any event described in clauses (A) and (B) of this Section 6(b)(ii), the Company shall give notice to each Demanding Qualified Holder with respect to such Shelf Registration Statement that the availability of the Shelf Registration Statement is suspended and, upon actual receipt of any such notice, each such Demanding Qualified Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration Statement until such Demanding Qualified Holder’s receipt of copies of the supplemented or amended Prospectus provided for this Section 6(b). The Suspension Period shall not exceed 90 days in any 120-day period (except as a result of a review of any post-effective amendment by the SEC prior to declaring any post-effective amendment to the Shelf Registration Statement effective provided the Company has used its commercially reasonable efforts to cause such post-effective amendment to be declared effective); provided, that Suspension Periods shall not exceed an aggregate of 120 days in any 12-month period (except as a result of a review of any post-effective amendment by the SEC prior to declaring any post-effective amendment to the Shelf Registration Statement effective provided the Company has used its commercially reasonable efforts to cause such post-effective amendment to be declared effective). The Company shall not be required to specify in the written notice to the Demanding Qualified Holders the nature of the event giving rise to the Suspension Period.
(c) Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for during the applicable period, or such shorter period which will terminate when provided herein with respect to the disposition of all Registrable Securities covered by such Registration Statement have been soldStatement; and cause the related Prospectus to be supplemented by any required Prospectus supplement, and supplement as so supplemented may be necessary to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities the Registrable Securities covered by such Registration Statement during Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Act.
(cd) notify the Notify each selling holders holder of Registrable Securities Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writingwriting (which notice pursuant to clauses (ii) through (v) below shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension if the effectiveness of a Shelf Registration Statement has been suspended pursuant to Section 6(b)), (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by paragraph (oSection 6(p) below cease to be true and correct, (5v) 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 jurisdiction, or the initiation or threatening of any proceeding for such purpose purpose, and (6vi) of the happening of any event which that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, 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 Prospectus statements therein, not 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 document incorporated therein by reference material fact necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(de) make every Use its commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(ef) if If requested by the managing underwriter underwriters, if any, or underwriters or the holders of a holder majority of the then-outstanding Registrable Securities being sold in connection with an underwritten offering, promptly incorporate include in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and such holders may reasonably request in order to permit the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan intended method of distribution with respect to of such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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; securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(f) that are not, in the opinion of counsel for the matters to be incorporated Company, in such Prospectus supplement or post-effective amendment;compliance with applicable law.
(fg) furnish Furnish to each selling holder of Registrable Securities Securities, its counsel and each managing underwriter, if any, without charge, at least one signed (1) conformed copy of the Registration Statement Statement, the Prospectus and any Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits (including those incorporated exhibits, unless requested in writing by referencesuch holder, counsel or underwriter);.
(gh) deliver Deliver to each selling holder of Registrable Securities Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusform of Prospectus) and any each amendment or supplement thereto as such Persons may reasonably requestrequest in connection with the distribution of the Registrable Securities; and the Company Company, subject to the last paragraph of this Section 6, hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any such amendment or supplement thereto;.
(hi) prior Prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts or things action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdiction; provided provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(ij) cooperate Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold and not bearing any restrictive legends; after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the underwriters;securities.
(jk) use Use its best commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(kl) upon Upon the occurrence of any event contemplated by paragraph (c)(6Section 6(d)(vi) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(lm) Prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities.
(n) 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.
(o) Use its commercially reasonable efforts to cause all Registrable Securities covered by the such Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if listed.
(p) Enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of such the Registrable Securities or being sold in connection therewith (including those reasonably requested by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration, (1i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.repre
Appears in 2 contracts
Sources: Registration Rights Agreement (Extraction Oil & Gas, Inc.), Registration Rights Agreement (Extraction Oil & Gas, LLC)
Registration Procedures. In connection with If and whenever the Company's Corporation is required to effect the registration obligations pursuant to Section 3 hereofof any Registrable Securities under the Securities Act as provided in this Agreement, the Company will Corporation shall use its reasonable best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities by the Holders thereof or the Corporation in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD(including a Partner Distribution), and use best its commercially reasonable efforts to cause such Registration Statement to become effectiveeffective and to remain effective as provided herein; provided that no later than 10 days before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company will Corporation shall furnish or otherwise make available to the holders Holders of the Registrable Securities covered by such Registration Statement Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comments of such holders Holders, counsel and managing underwriters, and the Company will not file any . With respect to a Demand Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of that covers the Registrable Securities covered by of a Holder, such Holder and its counsel shall have the opportunity to object to any information pertaining to such Holder that is contained in such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) before it is filed with the underwritersSEC, if any, shall and the Corporation will make the corrections reasonably object;requested by such Holder prior to such filing with the SEC.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause continuously effective during 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; period provided herein and 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 Statement; and cause the applicable period in accordance related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended method provisions of the Securities Act with respect to the disposition of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or methods any similar provisions then in force) under the Securities Act; provided that any Holder of distribution by Registrable Securities that has been included on a Shelf Registration may request that such Holder’s Registrable Securities be removed from such Registration Statement, in which event the sellers thereof set forth in Corporation shall promptly either withdraw such Registration Statement or supplement file a post-effective amendment to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a such Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell removing such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Securities.
(c) notify the Notify each selling holders Holder of Registrable Securities Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, :
(1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective;
(ii) of any notice from the SEC that there will be a review of a Registration Statement and, to the extent requested by a Holder, promptly provide such Holders, their counsel and the managing underwriters, if any, with a copy of any SEC comments received by the Corporation in connection therewith;
(2iii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, ;
(3iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, ;
(4v) if at any time the representations and warranties of the Company Corporation contained in any agreement (including any underwriting agreement) contemplated by paragraph (oSection 2.5(o) below cease to be true and correct, ;
(5vi) of the receipt by the Company Corporation 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 jurisdiction, or the initiation or threatening of any proceeding for such purpose and purpose; and
(6vii) of the happening of any event which that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, 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 Prospectus statements therein, in light of the circumstances under which they were made, not 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 document incorporated therein by reference material fact necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(d) make every Use its commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or a holder any Holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly incorporate include in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and such Holders may reasonably request in order to permit the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan intended method of distribution with respect to of such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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; securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified of practicable after the matters to be incorporated in Corporation has received such Prospectus supplement or post-effective amendment;request.
(f) furnish Furnish or make available to each selling holder Holder of Registrable Securities Securities, its counsel and each managing underwriter, if any, without charge, at least one signed copy five conformed copies of the Registration Statement Statement, the Prospectus and any Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated exhibits, unless requested by referencesuch Holder, counsel or underwriter);.
(g) deliver Deliver to each selling holder Holder of Registrable Securities Securities, its counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusform of Prospectus) and any each amendment or supplement thereto as such Persons may reasonably requestrequest in connection with the distribution of the Registrable Securities; and the Company Corporation, subject to the last paragraph of this Section 2.5, hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any such amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify or cooperate with the selling holders Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts or things action that may be necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdiction; provided that the Company Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(i) Unless the Registrable Securities to be sold are uncertificated, cooperate with the selling holders Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold and not bearing any restrictive legends; after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriters, if any, or Holders may request at least two business days Business Days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten Business Days prior to having to issue the underwriters;securities.
(j) use Use its best commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(6) aboveSection 2.5(c)(vii), prepare a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the such Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of from and after a majority of such Registrable Securities or the managing underwriters, if any;
(m) date not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;.
(n) Use its commercially reasonable efforts to cause all shares of Registrable Securities covered by such Registration Statement to be authorized to be listed on a national securities exchange if shares of that particular class of Registrable Securities are at that time listed on such exchange.
(o) In connection with an Underwritten Offering, enter into such customary agreements (including an underwriting agreementagreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith in order (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration :
(1i) make such representations and warranties to the holders Holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings Underwritten Offerings, and, if true, confirm the same if and covering matters including, but not limited to, those set forth in when requested;
(ii) use its commercially reasonable efforts to furnish to the Purchase Agreement; (2) obtain selling Holders of such Registrable Securities opinions of counsel and a negative assurance letter from counsel to the Company Corporation and updates thereof (which counsel counsel, opinions and opinions letter (in form, scope and substance, in the case of such opinions and such letter) shall be reasonably satisfactory to the selling Holders of such Registrable Securities, the managing underwriters, if any, and counsels to the holders of a majority selling Holders of the Registrable Securities being sold) Securities), addressed to each selling holder Holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions and negative assurance letters requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such holders Holders, counsel and underwriters; ;
(3iii) use commercially reasonable efforts to obtain "“cold comfort" ” letters and updates thereof from the Company's independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to the each selling holders Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters by underwriters in connection with primary underwritten offerings; Underwritten Offerings, which form and substance shall be acceptable to the selling Holders of the Registrable Securities;
(4iv) if an underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures of substantially to the effect set forth in Section 8 hereof 2.7 with respect to all parties to be indemnified pursuant to said SectionSection 2.7; and and
(5v) the Company shall deliver such documents and certificates as may be reasonably requested by the holders any Holder of a majority of the Registrable Securities being sold sold, such Holder’s counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 2.5(o)(i) and to evidence compliance with clause (k) above and with any customary the conditions contained in the underwriting agreement or other agreement entered into by the CompanyCorporation. The above shall be done at each closing under such underwriting or similar agreement agreement, or as and to the extent required thereunder;.
(op) To the extent not prohibited by applicable Law, make available for inspection by a representative the selling Holders of the holders of a majority of the Registrable Securities, any underwriter participating in any such disposition pursuant to such registrationof Registrable Securities, if any, and any attorney attorneys or accountant accountants retained by the sellers such selling Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the CompanyCorporation and its subsidiaries, and cause the Company's officers, directors and employees of the Corporation and its subsidiaries to supply all information in each case reasonably requested by any such representativeHolder, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold Corporation believes after consultation with counsel for the Corporation, that to underwriters in a firm or best efforts underwritten offering, do so would cause the Corporation to forfeit an attorney-client privilege that was applicable to such information or (2) if not sold to underwriters in such an offering, beginning with either (x) the first month of Corporation has requested and been granted from the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies SEC confidential treatment of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.co
Appears in 2 contracts
Sources: Registration Rights Agreement (ZAIS Group Holdings, Inc.), Investment Agreement (Hf2 Financial Management Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, If and whenever the Company will is required to use its reasonable best efforts to effect such or cause the registration to permit the sale of such any Registrable Securities under the Securities Act as provided in accordance with the intended method or methods of distribution thereofthis Agreement, and pursuant thereto the Company will will, as expeditiously as possible:
(ai) prepare and and, in any event within 120 days after the end of the period within which a request for registration may be given to the Company, file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the registration statement with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement registration statement to become effective; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish may discontinue any registration of its securities which is being effected pursuant to Section 2 hereof at any time prior to the holders effective date of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregistration statement relating thereto;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, a period not in excess of 180 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to as may be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 permitted 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 registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers Seller or Sellers thereof set forth in such Registration Statement registration statement; provided, that before filing a registration statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable lawprospectus, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 thereto, the Company will furnish to counsel for the Investor or Investors copies of all documents proposed to be filed, which documents will be subject to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings review of such Prospectus supplement counsel and no such registration statement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterprospectus, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto, shall be filed to which such counsel shall have reasonably objected on the grounds that such registration statement or prospectus, or amendment or supplement (with respect to disclosures or omissions in the case of a registration under Section 3 hereof relating to the Holders of Registrable Securities), does not comply in all material respects with the requirements of the Securities Act or the rules or regulations thereunder and shall have specified the basis for such objection in reasonable detail;
(hiii) prior furnish to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification each Seller of such Registrable Securities for offer such number of copies of such registration statement and sale 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 summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such Seller may reasonably request in order to facilitate the disposition of the Registrable Securities by such Seller;
(iv) use its reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter each Seller shall reasonably requests in writing request, and do any and all other acts or and things which may be reasonably necessary or advisable to enable such Seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such Seller, except that the Company will shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this clause (iv), it is would not then be obligated to be so qualified qualified, to subject itself to taxation in any such jurisdiction, or to take any action which would subject it consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(jv) use its reasonable best efforts to cause the such Registrable Securities covered by the applicable Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller Seller or sellers Sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kvi) upon the occurrence notify each Seller of any event contemplated such Registrable Securities covered by paragraph 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 (c)(6ii) aboveof this Section 4, of the 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 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 supplement reasonable number of copies of an amended or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(lvii) cause otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable (but not more than 18 months) after the effective date of the registration statement, an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;
(viii) use its reasonable best efforts to list such Registrable Securities on any securities exchange on which the Class A Common Stock is 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 to provide a transfer agent and registrar for such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) registration statement not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(nix) enter into such customary agreements (including an underwriting agreementagreement in customary form) and take all such other actions in connection therewith as requesting Investor or Investors, the Seller or Sellers of a majority of the Registrable Securities being sold by other Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Securities;
(1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2x) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letter or letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in by "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, as the same shall set forth in full Investor or the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders Seller or Sellers of a majority of the Registrable Securities being sold and by other Holders (provided that such Registrable Securities constitute at least 25% of the managing underwriters, if any, to evidence compliance with clause (ksecurities covered by such registration statement) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;reasonably request; and
(oxi) make available for inspection by a representative any Seller of the holders of a majority of the such Registrable SecuritiesSecurities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registrationregistration statement and by any attorney, and any attorney accountant or accountant other agent retained by the sellers 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 representativeSeller, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestregistration statement. The Company may require each seller of Registrable Securities as to which any registration is being effected Seller to furnish to the Company with such information regarding such Seller and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Seller agrees 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 (vi) of this Section 6(k) hereof4, such holder Seller will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holderSeller's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by clause (vi) of this Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 Prospectus4, and, if so directed by the Company, such holder Seller will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holderSeller's possession, of the Prospectus 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 regarding the maintenance period mentioned in clause (ii) of such Registration Statement this Section 4 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 (vi) of this Section 6(c)(6) hereof to 4 and including the date when each seller of Registrable Securities covered by such Registration Statement Seller shall have received the copies of the supplemented or amended prospectus contemplated by clause (vi) of this Section 6(k) hereof or the Advice4.
Appears in 2 contracts
Sources: Registration Rights Agreement (Hovnanian Enterprises Inc), Registration Rights Agreement (Hovnanian Enterprises Inc)
Registration Procedures. (a) In connection with the Company's registration obligations of the Company pursuant to Section 3 hereofand in accordance with this Agreement, the Company will use its best commercially reasonable efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, of which the Stockholder and pursuant thereto the other Investors have notified the Company will prior to the filing by the Company of the applicable Registration Statement, as expeditiously promptly as possiblereasonably practicable, and the Company shall:
(ai) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewithSecurities, cooperate with underwriters’ counsel in an underwritten offering in connection with all required filings with FINRA and assist in any filings required to be made with the NASD, and thereafter use best its commercially reasonable efforts to cause such Registration Statement to become effectiveeffective upon filing but in any event as soon as reasonably practicable after the filing of such Registration Statement; provided provided, that before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (other than reports required to be filed by it under the Exchange Act that are incorporated or deemed to be incorporated by reference into the Registration Statement that do not relate to an offering of Registrable Securities pursuant to this Agreement), the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Stockholder and the underwriters, if any, other Investors copies of all such documents proposed to be filed. In the case of a Registration Statement pursuant to Section 1.1 or 1.2, which documents will be subject if the Stockholder informs the Company that it has any objections to the reasonable review filing of such holders and underwritersRegistration Statement, and amendment or supplement, the Company will not file such Registration Statement, amendment or supplement. In the case of a Registration Statement pursuant to Section 1.5, the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to such Registration Statement to which the holders Stockholder will have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of a majority the Securities Act or of the rules or regulations thereunder, provided that the Company shall have the opportunity to make such Registration Statement or amendment or supplement thereto compliant in all material respects with such requirements and thereafter file such Registration Statement or amendment or supplement;
(ii) use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until all of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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; disposed of and comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all securities the Registrable Securities covered by such Registration Statement during Statement;
(iii) furnish to the applicable period in accordance with Stockholder, the intended method or methods other Investors and any managing underwriters, without charge, such number of distribution by the sellers thereof set forth in conformed copies of such Registration Statement and of each post-effective amendment thereto, and deliver, without charge, such number of copies of each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such other documents as the Stockholder and the other Investors may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by it or supplement any other Investor;
(iv) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the ProspectusStockholder and the other Investors reasonably request in writing; provided, that the Company shall not be deemed required to have used qualify generally to do business, subject itself to taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for its best efforts obligations pursuant to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of this Section 6(k1.7(a)(iv), if applicable;
(cv) promptly as reasonably practicable notify the selling holders of Registrable Securities Stockholder and the managing underwritersother Investors, if anyat any time when a prospectus relating thereto is required to be delivered under the Securities Act, promptlyupon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, as promptly as practicable, prepare and furnish to the Stockholder and the other Investors a reasonable number of copies of 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 the light of the circumstances under which they were made; provided, that any Investor receiving information pursuant to this Section 1.7(a)(v) shall hold any of the information communicated pursuant to this Section 1.7(a)(v) in confidence until is publicly disclosed;
(if requested by any such Personvi) confirm such advice in writing, promptly as reasonably practicable notify the Stockholder and the other Investors (1A) when the Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, filed and, with respect to the such Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any request by the SEC for amendments or supplements to the such Registration Statement or the Prospectus to amend or to supplement such prospectus or for additional information, (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement or the initiation of any proceedings for that purpose, such purpose and (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5D) of the receipt by the Company or its legal counsel 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 or, to the knowledge of the Company, threatening of any proceeding for such purpose and (6) 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 in order to make the statements therein not misleadingpurpose;
(dvii) make every use commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 cause all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange exchange, if any, on which similar securities issued by the Company are then listed or, if requested no similar securities issued by the holders of a majority of Company are then listed on any securities exchange, use its commercially reasonable efforts to cause all such Registrable Securities or to be listed on such securities exchange reasonably selected by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nviii) enter into such customary agreements (including an underwriting agreementagreements in form, scope and substance as is acceptable to the Company acting reasonably) and take all such appropriate and reasonable other actions in connection therewith as the Stockholder, the Investors or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities¸ including making members of senior management of the Company available to participate on a reasonable basis in “road show” and other customary marketing activities reasonably requested by the managing underwriter(s), in each case consistent with the historical practices of the Company for an underwritten offering by the Company having an aggregate offering size greater than fifty million dollars ($50 million);
(ix) if such connection, whether or not an underwriting agreement is entered into and whether or not the registration offering is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, offering or if any, in form, substance and scope as are customarily made required by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders financial institution facilitating any sale of Registrable Securities and the underwritersSecurities, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative of the holders of a majority of Stockholder, the Registrable Securitiesother Investors, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney counsel, accountant or accountant other agent retained by the sellers Stockholder and the other Investors or any such underwriter, all financial and other records, pertinent corporate documents and properties of the CompanyCompany related to the Company and its business as will be reasonably necessary and requested by such Investor(s) or underwriters to enable them to reasonably exercise their due diligence responsibilities, provided that each of the Stockholder, the other Investors, any such underwriter and cause any counsel, accountant or other agent retained by the Stockholder, the other Investors or any such underwriter will, if requested, enter into a confidentiality agreement satisfactory to the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(px) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement in a form that satisfies the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder, no later than 45 days after which requirement shall be deemed satisfied if the end Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(xi) in the event of the issuance of any 12-month period stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use commercially reasonable efforts promptly to obtain the withdrawal of such order at the earliest practicable time;
(or 90 days, xii) if such period offering is an underwritten offering or if required by a fiscal year) (1) commencing at financial institution facilitating any sale of Registrable Securities, use commercially reasonable efforts to furnish to the end of any fiscal quarter in which Registrable Securities are sold Stockholder, each underwriter and the other Investors one or more comfort letters, addressed to underwriters in a firm or best efforts underwritten offeringthe underwriters, the Stockholder and the Investors, dated the effective date of, or the date of the final receipt issued for, such Registration Statement (2the date of the closing under the underwriting agreement for such offering), signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters in similar underwritten offerings;
(xiii) if not sold such offering is an underwritten offering or if required by a financial institution facilitating any sale of Registrable Securities, use commercially reasonable efforts to underwriters in such an offering, beginning with the first month provide legal opinions of the Company's first fiscal quarter commencing after ’s outside counsel, addressed to the underwriters, dated the effective date of, or the date of the final receipt issued for, such Registration Statement (the date of the closing under the underwriting agreement for such offering), each amendment and supplement thereto, with respect to the Registration Statement, which statements shall cover said 12-month periodseach amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature;
(xiv) make available to the Stockholder and the other Investors each item of correspondence from the SEC or the staff of the SEC and each item of correspondence written by or on behalf of the Company to the SEC or the staff of the SEC, in each case solely relating to such Registration Statement; and
(qxv) promptly prior use commercially reasonable efforts to procure the cooperation of the Company’s transfer agent in settling any Transfer of Registrable Securities, including (A) with respect to the filing transfer of any document which physical share certificates representing shares of Company Common Stock into book-entry form in accordance with any procedures reasonably requested by the Stockholder or the Investors or the underwriters, and (B) to the extent such Registrable Securities are subject to a restrictive legend, by removing such legend (or eliminating or terminating such comparable notations or arrangements on securities held in book-entry form) and, if required by the Company’s transfer agent, delivering an opinion of the Company’s counsel that the restriction referenced in such legend (or such notations or arrangements) is no longer required in order to ensure compliance with the Securities Act.
(b) The Company agrees not to file or make any amendment to any disclosure regarding the Stockholder or any other Investor in any Registration Statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, without the consent of the Stockholder (any such consent to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statementbinding on each other Investor), provide copies of such document to counsel to the selling holders of Registrable Securities in its sole discretion, unless and to the managing underwriters, if any, make the Company's representatives available for discussion of extent such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. disclosure is required by applicable Law.
(c) The Company may require each seller of Registrable Securities as to which the Stockholder and any registration is being effected other Investor to furnish to the Company with such information regarding the Stockholder and such other Investor and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as may be required by the Securities Act. If within five (5) Business Days of the receipt of such a written request from the Company, the Stockholder or any other Investor fails to provide to the Company any information relating to the Stockholder or such Investor, as applicable, that is required by applicable Law to be disclosed in the Registration Statement, the Company may from time to time reasonably request in writing. Each holder of exclude the Stockholder’s and such Investor’s, as applicable, Registrable Securities from such Registration Statement.
(d) The Stockholder agrees 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(k1.7(a)(v), 1.7(a)(vi)(B), 1.7(a)(vi)(C) or 1.7(a)(vi)(D) hereof, to the extent that such holder will forthwith discontinue event requires the discontinuance of the disposition of Registrable Securities until covered by a Registration Statement or the related prospectus and such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereofnotice reasonably requests such discontinuance, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumedStockholder shall discontinue, and has received copies shall cause each Investor to discontinue, disposition of any additional or supplemental filings which are incorporated by reference in the Prospectus, 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 such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received or the related prospectus until receipt of the copies of the supplemented or amended prospectus contemplated by Section 6(k1.7(a)(iii) hereof hereof, which supplement or amendment shall be prepared and furnished as soon as practicable, or until the AdviceStockholder and the other Investors are advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any amended or supplemented prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by reference in such prospectus (such period during which disposition is discontinued being an “Interruption Period”) and, if requested by the Company, the Stockholder shall, and shall cause each of the other Investors to, use its commercially reasonable efforts to destroy or return to the Company all copies then in its possession, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Securities at the time of receipt of such request. As soon as practicable (and in any event no later than two (2) Business Days) after the Company has determined that the use of the applicable prospectus may be resumed, the Company shall provide written notice to the Stockholder and the other Investors. In the event the Company invokes an Interruption Period hereunder, as soon as practicable (and in any event no later than two (2) Business Days) after the need for the Company to continue the Interruption Period ceases for any reason, the Company shall provide written notice to the Stockholder and the other Investors that such Interruption Period is no longer applicable. Notwithstanding anything in this paragraph to the contrary, no Interruption Period shall exceed sixty (60) days and, in any calendar year, no more than one hundred twenty (120) days in the aggregate may be part of an Interruption Period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Envestnet, Inc.), Investment Agreement (Envestnet, Inc.)
Registration Procedures. In connection with Whenever required under this Agreement to effect the Company's registration obligations pursuant to Section 3 hereofRegistration of any Registrable Securities, the Company will shall use its best commercially reasonable efforts to effect such registration Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods plan of distribution thereof, and pursuant thereto the Company will shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC, Commission as soon as practicable, practicable a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the effective and remain effective until all Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed have ceased to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectSecurities;
(b) prepare and file with the SEC Commission such amendments and post-effective amendments to the Registration Statement Statement, and such supplements to the Prospectus, as may be necessary reasonably requested by the Holder Representative or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when until all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period are sold in accordance with the intended method or methods plan of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect prior to the filing a Registration Statement or any post-effective amendmentProspectus, 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holder Representative, and such Holder Representative’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement, and such other documents as the Underwriters, if any, and the Holder Representative, and such Holder Representative’s legal counsel may request in order to facilitate the disposition of the Registrable Securities owned by the Holder Representative;
(hd) prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale covered by the Registration Statement under the such securities or “blue sky sky” laws of such jurisdictions in the United States as any seller the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request (or underwriter reasonably requests in writing provide evidence satisfactory to such Holder that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts or and things that may be necessary or advisable to enable the disposition Holders of Registrable Securities included in such jurisdictions Registration Statement to consummate the disposition of the such Registrable Securities covered by the Registration Statementin such jurisdictions; provided provided, however, that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify or to take any action to which it would be subject it to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(ie) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable cause all 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed if requested by the holders of listed;
(f) provide a majority of transfer agent and registrar for all such Registrable Securities or the managing underwriters, if any;
(m) not no later than the effective date of such Registration Statement;
(g) notify each participating Holder, as soon as practicable after the Company receives notice thereof, but in any event within one business day of such date, of the time when the Registration Statement has been declared effective and the effectiveness of any post-effective amendment thereto;
(h) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(i) at least five days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable), furnish a copy thereof to the Holder Representative or his counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
(j) notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, provide as then in effect, includes a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyMisstatement;
(nk) enter into in the event of an Underwritten Offering, (i) permit the Demanding Holder, the Underwriters or other financial institutions facilitating such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwritersUnderwritten Offering, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers Demanding Holder, Underwriter or underwriterother financial institution to participate, all financial and other recordsat each such person’s own expense, pertinent corporate documents and properties in the preparation of the Company, and Registration Statement; (ii) cause the Company's ’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriterUnderwriter, attorney or accountant in connection with the Registration; provided, however, that such registration; provided that any recordsrepresentatives or Underwriters, information financial institution, attorney or documents that are designated by accountant agree to confidentiality arrangements reasonably satisfactory to the Company in writing as confidential shall be kept confidential by such Persons unless Company, prior to the release or disclosure of any such records, information or documents is required by court or administrative orderinformation;
(pl) otherwise use its best efforts to comply with all applicable rules obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering in customary form and regulations covering such matters of the SECtype customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request;
(m) in the event of an Underwritten Offering, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Demanding Holder and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Demanding Holder or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to the Demanding Holder;
(n) in the event of an Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form consistent with the terms of this Agreement, with the managing Underwriter of such offering or sale;
(o) make generally available to its security holdersshareholders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period Act and Rule 158 thereunder (or 90 daysany successor rule promulgated thereafter by the Commission);
(p) in the event of an Underwritten Shelf Takedown pursuant to Section 2(f), if use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in the Underwritten Offering;
(q) use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which the Registrable Securities remain Registrable Securities. If the Company does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement is filed, the Company agrees to pay such period is a fiscal year) (1) commencing fee at such time or times as the Registrable Securities are to be sold. If the automatic shelf registration statement has been outstanding for at least three years, at the end of the third year the Company shall refile a new automatic shelf registration statement covering the Registrable Securities. If at any fiscal quarter in which Registrable Securities are sold time when the Company is required to underwriters in re-evaluate its WKSI status the Company determines that it is not a firm or WKSI, the Company shall use its reasonable best efforts underwritten offeringto refile the shelf registration statement on Form S-3 and, or (2) if such form is not sold available, Form S-1 and keep such registration statement effective during the period during which such registration statement is required 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 12-month periodsbe kept effective; and
(qr) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)otherwise, provide copies of in good faith, cooperate reasonably with, and take such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof customary actions as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") be requested by the Company that the use of the Prospectus may be resumedHolders, 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, connection with 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 such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceRegistration.
Appears in 2 contracts
Sources: Merger Agreement (Stock Yards Bancorp, Inc.), Registration Rights Agreement (Stock Yards Bancorp, Inc.)
Registration Procedures. In connection with the Company's registration Demand Registration obligations of the Company pursuant to and in accordance with Section 3 hereof5.1 of this Agreement and subject to receipt from the sellers of Registrable Securities of the information to be furnished by them, as provided below, the Company will shall use its reasonable best efforts to effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicablepracticable within the time periods specified in Section 5.1, a Registration Statement or Registration Statements relating to the Demand Registrations on any appropriate form Form under the Securities Act, Act which form shall be available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its reasonable best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, including documents incorporated or deemed to be incorporated by reference, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement Statement, their Special Counsel and the managing underwriter or underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders holders, their Special Counsel and such underwriters, if any, and the Company will not shall not, subject to the requirements of applicable law and Section 5.1, file any such Registration Statement Statement, or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority in number of the Registrable Securities covered by such Registration Statement Statement, or the managing underwriter or underwriters, if any, shall reasonably objectobject on a timely basis;
(b) prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement required to be filed pursuant to Section 5.1 of this Agreement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter time period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified in Section 5.1; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, if required; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the such Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) use its best efforts to notify the selling holders of Registrable Securities Securities, their Special Counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, (1) when the a Prospectus or any Prospectus supplement or post-effective amendment related to such Registrable Securities has been filed, and, with respect to the a Registration Statement or any post-effective amendmentamendment related to such Registrable Securities, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the such a Registration Statement or the related Prospectus or for additional information, (3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph contained in any agreement (oincluding any underwriting agreement) entered into pursuant to Section 6(o) below cease to be true and correct, (5) of the receipt by the Company 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 and purpose, (6) of the happening of any event which makes any statement made in the such a Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which requires the making of any changes in the such Registration Statement, the Statement or Prospectus so that such Prospectus will not contain any untrue statement of a material fact or omit to state any document incorporated therein by reference in order material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleadingmisleading and (7) prior to the initiation of a Suspension Period;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of such a Registration Statement, or the Registration Statement lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a any holder of Registrable Securities being sold in connection with an underwritten offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement related to such Registrable Securities such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold such holder agree should be included therein relating to the plan of distribution with respect to such Registrable Securitiesas required by applicable law, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after notification of the matters to be incorporated in such Prospectus supplement or such post-effective amendmentamendment and (iii) supplement or make amendments to such Registration Statement; provided, however, that the Company shall not be required to take any of the actions in this Section 5.3(e) which are not, in the opinion of counsel for the Company, required by or in compliance with applicable law.
(f) upon request of a selling holder of Registrable Securities or its Special Counsel, furnish to each selling holder of Registrable Securities or its Special Counsel, without charge, a copy of each Registration Statement related to such Registrable Securities and any post-effective amendment thereto, including financial statements, schedules and all exhibits (including, if requested, those previously furnished or proposed to be incorporated by reference) at the earliest practicable time under the circumstances before the filing of such documents with the SEC;
(fg) furnish to each selling holder of Registrable Securities Securities, its Special Counsel and each managing underwriter, if any, without charge, at least one signed copy of the Registration Statement or Statements related to such Registrable Securities and any post-effective amendment amendments thereto, including financial statements and schedulesstatements, all documents incorporated therein by reference schedules and all exhibits (including including, if requested, those previously furnished or incorporated by reference);
(gh) deliver to each all selling holder holders of Registrable Securities Securities, their Special Counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses related to such Registrable Securities (including each preliminary prospectus) and as many copies of any amendment or supplement thereto as such Persons may reasonably request; subject to the restrictions contained in the last paragraph of Section 5.3, the Company consents to the use of the such Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;
(hi) prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing writing; use its best efforts to keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or to qualified, (B) take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject, or (C) take any action which would subject it to the assessment of taxes in any such jurisdiction where it is not then so subject;
(ij) cooperate with the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(jk) use its reasonable best efforts to cause the Registrable Securities covered by the applicable each Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kl) upon as expeditiously as possible after the occurrence of any event contemplated by paragraph (c)(65.3(c)(6) above, but subject to Section 5.1(a), prepare a supplement or posteffective post-effective amendment to the each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in light of the circumstances in which they were made, not misleading;
(lm) use its reasonable best efforts to cause all Registrable Securities covered by the such a Registration Statement to be listed on each securities exchange exchange, if any, on which similar securities issued by the Company are then listed if requested by the holders of a majority in aggregate number of shares of such issue or class of Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanySecurities;
(n) enter into such agreements (including an underwriting agreement) consistent with this Section 5.3 and use its reasonable best efforts to take all such other actions in connection therewith as shall have been reasonably requested by the managing underwriter or underwriter, if any, or the holders of a majority in principal amount of the Registrable Securities being sold in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionincluding, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration, (1) make making such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirming the Purchase Agreementsame if and when reasonably requested; (2) using its reasonable best efforts to obtain for the benefit of the holders of such Registrable Securities opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority in principal amount of the reasonably Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) using its reasonable best efforts to obtain "“cold comfort" ” letters and updates thereof from the Company's independent certified public accountants of the Company addressed to the each selling holders holder of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures of no less favorable than those set forth in Section 8 5.5 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver delivering such documents and certificates as may be requested by to certify that the holders of a majority representations and warranties of the Registrable Securities being sold Company made pursuant to clause (1) above continue to be true and the managing underwriters, if any, correct and to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or or, as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesSecurities being sold, any underwriter participating in any disposition pursuant to such registration, of Registrable Securities and any attorney or accountant retained by the sellers such selling holders or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, Company as shall be reasonably necessary to enable them to exercise their due diligence responsibility and cause the Company's officers, directors and employees of the Company to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by the Company in writing as confidential at the time of delivery of such records, information or documents shall be kept confidential by such Persons and their designees unless such records, information or documents are in the public domain or disclosure of such records, information or documents is required by court or administrative order;order or unless such records, information or documents otherwise become public knowledge or in the opinion of counsel to such Person disclosure by such person is otherwise required by law; and
(p) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 such seller and the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing, and the Company may exclude from such registration the Registrable Securities of any seller who fails to furnish such information, provided, that such sellers’ Registrable Securities shall be counted for the demand made upon the Company hereunder. Each holder of Registrable Securities agrees to comply with the provisions of the Securities Act with respect to the disposition of all of his Registrable Securities covered by any Registration Statement in accordance with the intended methods of distribution by such seller set forth in such Registration Statement, as amended, or the related Prospectus, as supplemented. Each holder of Registrable Securities agrees 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(k5.3(c)(3), 5.3(c)(5), 5.3(c)(6) and 5.3(c)(7) hereof, such holder will shall forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such holder's ’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5.3(1) hereof, or until it is advised in writing (the "“Advice"”) by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the such Prospectus, 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 such notice. In the event the Company shall give any such notice, the six months time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.mentio
Appears in 2 contracts
Sources: Shareholders' Agreement (Matthews International Corp), Shareholders' Agreement (Schawk Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, If and whenever the Company will is required by the provisions of this Warrant to use its best efforts to effect such the registration to permit of any of the sale of such Registrable Shares under the Securities in accordance with the intended method or methods of distribution thereofAct, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with furnish to the SEC, Registered Holder such number of copies as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form Registered Holder shall be available for the sale reasonably request of the Registrable Securities in accordance with the intended method or methods of distribution thereof prospectus, including a preliminary prospectus and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, in conformity with the Company will furnish to the holders requirements of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectAct;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause register or qualify the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities Shares covered by the Registration Statement to be listed on each under the securities exchange on which similar securities issued by laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company are then listed shall not be required in connection with this subsection 20(b) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(c) promptly notify the Registered Holder, if the Company has delivered preliminary or final prospectuses to the Registered Holder and after having done so, the prospectus is amended to comply with the requirements of the Securities Act and, if requested by the holders Company, the Registered Holder shall immediately cease making offers or sales of a majority Registrable Shares under the Registration Statement and return all prospectuses to the Company. The Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of such the revised prospectuses, the Registered Holder shall be free to resume making offers and sales of the Registrable Securities or the managing underwriters, if any;Shares; and
(md) not later than pay the effective date expenses incurred by it in complying with its obligations under this Warrant in connection with registration rights, including all registration and filing fees, exchange listing fees, expenses for the preparation of the Registration Statement, provide a CUSIP number for all Registrable Securities prospectus and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) any amendments and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities supplements thereto, printing and in such connectionphotocopy expenses, whether or not an underwriting agreement is entered into fees and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions expenses of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause fees and expenses of accountants for the Company's officers, directors and employees to supply all information reasonably requested but excluding: (i) selling commissions or underwriting discounts incurred by any such representative, underwriter, attorney or accountant the Registered Holder in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure sales of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into Shares under the Registration Statement or and (ii) the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities fees and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt expenses of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") counsel retained 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceRegistered Holder.
Appears in 2 contracts
Sources: Common Stock Purchase Warrant (Igi Inc), Common Stock Purchase Warrant (Igi Inc)
Registration Procedures. In connection with the Company's registration obligations Whenever Executive has requested that any of Executive’s Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will Corporation shall use its reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Corporation shall as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, Securities and Exchange Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the registration statement with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use reasonable best efforts to cause such Registration Statement registration statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements theretoeffective as soon as practicable thereafter, in each case in accordance with the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Act and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders applicable rules and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregulations promulgated thereunder;
(b) notify in writing Executive of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC Securities and Exchange Commission such amendments and amendments, post-effective amendments and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableregistration statement;
(c) furnish to Executive a 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 (as defined in Rule 405 of the Securities Act) and such other documents as Executive may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Executive;
(d) promptly notify in writing Executive, at any time when a prospectus relating thereto is required to be delivered under the selling holders Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement (i) contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made or (ii) is otherwise not legally available to support sales of Registrable Securities, and, at the request of Executive, the Corporation shall promptly prepare and furnish to Executive a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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;
(e) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Corporation are then listed;
(f) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(g) enter into and perform such customary agreements (including underwriting agreements in customary form) in order to expedite or facilitate the disposition of Registrable Securities (including, without limitation, a stock split or combination);
(h) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the managing underwriters, if any, promptly, Securities and Exchange Commission;
(if requested by any such Personi) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) event of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement a registration statement, or the initiation of any proceedings for that purpose, (4) if at any time order suspending or preventing the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company use of any notification with respect to the suspension of related prospectus or suspending the qualification of the Registrable Securities any equity securities included in such registration statement for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statementjurisdiction, 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 in order to make the statements therein not misleading;
(d) make every Corporation shall use reasonable effort best efforts promptly to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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 underwritersorder;
(j) use its reasonable best efforts to cause the such Registrable Securities covered by the applicable Registration Statement such 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 underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the occurrence of any event contemplated by paragraph (c)(6) aboveSecurities Act, prepare a supplement or posteffective amendment is filed in accordance with the Securities Act to the Registration Statement or extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related Prospectus or any document incorporated therein by reference or file any other required document so thatprospectus, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities obtain one or the managing underwritersmore “cold comfort” letters, if any;
(m) not later than dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the Registration Statement, provide a CUSIP number for all Registrable Securities and provide date of the applicable trustee(s) or transfer agent(s) with printed certificates for closing under the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and underwriters), from the underwriters, if any, such letters to be Corporation’s independent public accountants in customary form and covering such matters of the type customarily covered in "cold comfort" by such letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderregistered offering reasonably request;
(om) make available for inspection by provide a representative legal opinion of the holders of a majority of the Registrable SecuritiesCorporation’s outside counsel, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after dated the effective date of such registration statement (or, if such registration includes an underwritten Public Offering, dated the Registration Statementdate of the closing under the underwriting agreement and addressed to the underwriters), which statements shall cover said 12-month periodswith respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and
(qn) promptly cooperate with Executive to facilitate the timely preparation and delivery of certificates (or electronic notation through the use of The Depository Trust Corporation's Direct Registration System) representing the Registrable Securities to be sold pursuant to such registration statement or Rule 144 free of any restrictive legends and representing such number of shares of common stock registered in such names as Executive may reasonably request in a reasonable period of time prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders sales of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented registration statement or amended prospectus contemplated by Section 6(k) hereof or the AdviceRule 144.
Appears in 2 contracts
Sources: Executive Employment Agreement (Aquestive Therapeutics, Inc.), Executive Employment Agreement (Aquestive Therapeutics, Inc.)
Registration Procedures. In connection with the Company's registration obligations Registration to be effected pursuant to Section 3 hereofthe Resale Registration Statement, and whenever the Holder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company will shall use its best commercially reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as reasonably possible:
(a) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities ActStatement, which form shall and all amendments and supplements thereto and related prospectuses as may be available for the sale of the necessary to comply with applicable securities laws, with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best commercially reasonable efforts to cause such Registration Statement to become effective; effective (provided that at least five (5) Business Days before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will shall furnish to counsel selected by the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, Holder copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectcounsel);
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders Holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such PersonA) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the any Registration Statement or the initiation of any proceedings for that purpose, (4B) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company or its counsel 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 purpose, and (6C) the effectiveness of each Registration Statement filed hereunder;
(c) prepare and file with the Commission 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 until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be Registrable Securities;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter reasonably 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 (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f), (ii) consent to general service of process in any such jurisdiction, or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) 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 when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such Registration Statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which makes the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any statement made in fact necessary to make the Registration Statementstatements therein not misleading, and, at the request of any such seller, the Prospectus Company promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state 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 in order fact necessary to make the statements therein not misleading;
(dh) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on a securities exchange 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 FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(j) enter into and perform such customary agreements and take all such other actions as the Holder or placement agent 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 and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make every 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 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 officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement;
(l) otherwise comply with all applicable rules and regulations of the Commission;
(m) 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 Common Stock included in such Registration Statement for sale in any jurisdiction, the Company shall use its commercially reasonable effort efforts promptly to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch order;
(en) if 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 use its commercially reasonable efforts to cause such information as the managing 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(ko) upon cooperate with the occurrence Holder and the placement agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any event contemplated by paragraph (c)(6restrictive legends) above, prepare a supplement or posteffective amendment 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 placement agent or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleadingHolder may request;
(lp) cause all Registrable Securities cooperate with the Holder covered by the Registration Statement to be listed on and each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities underwriter or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are agent participating in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(q) provide a legal opinion of the Company’s outside counsel, dated the effective date of such connectionRegistration Statement (and, whether or not an underwriting agreement is entered into and whether or not the registration is if such Registration includes an underwritten registration (1) make such representations and warranties Public Offering, dated the date of the closing under the underwriting agreement), with respect to the holders of such Registrable Securities Registration Statement, each amendment and supplement thereto, the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in prospectus included therein (including the Purchase Agreement; (2preliminary prospectus) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be documents relating thereto in customary form and covering such matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered intolegal opinions of such nature, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above which opinion shall be done at each closing under such underwriting or similar agreement or as and addressed to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Maison Solutions Inc.), Securities Purchase Agreement (Maison Solutions Inc.)
Registration Procedures. In connection Whenever the Shareholder has made a Request in accordance with the Company's registration obligations Section 5.1 that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts to effect such registration to permit shall:
(a) as expeditiously as reasonably practicable after the sale receipt by the Company of such a Request, prepare and file with the SEC a Required Registration Statement or Required Shelf Registration Statement, as the case may be, providing for the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof specified in such Request, and shall include all financial statements required use reasonable best efforts to have such Required Registration Statement or Required Shelf Registration Statement, as the case may be, declared effective by the SEC as soon as practicable thereafter and subject to be filed therewiththe Blackout Periods set forth in Section 5.2, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause keep such Registration Statement to become effective; provided that before filing a Required Registration Statement or Prospectus Required Shelf Registration Statement, as the case may be, continuously effective (i) in the case of a Demand Registration, for a period of at least ninety (90) calendar days (or, in the case of an underwritten offering, such period as the underwriters may reasonably require) following the date on which such Required Registration Statement is declared effective (or any amendments or supplements thereto, the Company will furnish to the holders such shorter period which shall terminate when all of the Registrable Securities covered by such Required Registration Statement and have been sold pursuant thereto) or (ii) in the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders case of a majority of the Shelf Registration, until such time as all Registrable Securities covered by such Required Shelf Registration Statement have been sold pursuant thereto, including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or Required Shelf Registration Statement or the underwritersrelated prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement or Required Shelf Registration Statement, if anyrequired by the rules, shall reasonably objectregulations or instructions applicable to the registration form used by the Company for such Required Registration Statement or Required Shelf Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky Laws, or any rules and regulations thereunder;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during for the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in (a) above;
(c) furnish to the Shareholder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as the Shareholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Shareholder;
(d) use its reasonable best efforts to register or supplement qualify such Registrable Securities under such other securities or blue sky Laws of such jurisdictions in the United States as the Shareholder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the ProspectusShareholder to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Shareholder (it being understood that the Company shall be under no obligation to register or qualify the Ordinary Shares or ADSs under Israeli or other Laws of jurisdictions outside the United States); provided that the Company shall not be deemed required to have used its (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction where it is not so subject;
(e) in the event of any underwritten public offering, enter into an underwriting agreement or similar agreement, in usual and customary form, with the managing underwriters of such offering and use reasonable best efforts to keep take such other actions as the managing underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including causing its senior officers to participate in “road shows” and other information meetings organized by the managing underwriters;
(f) notify the Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement effective during contains an untrue statement of a material fact or omits any fact necessary to make the applicable period if it voluntarily takes any action that would result statements therein, not misleading, and in selling such case, subject to Section 5.2, the Company shall promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the holders of Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the Registrable Securities covered thereby statements therein, not being able misleading;
(g) use its reasonable best efforts to sell cause all such Registrable Securities during that period unless such action is required under applicable law, provided that which are registered to be listed on each securities exchange on which the foregoing shall not apply ADSs representing the Ordinary Shares are then listed and to actions taken by be eligible and remain eligible for registration of the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableADSs pursuant to Form F-6;
(ch) notify cooperate with the selling holders of Registrable Securities Shareholder and the managing Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends;
(i) enter into such customary agreements and use reasonable best efforts to take all such other actions as the Shareholder or the underwriters, if any, promptlyreasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(j) make available for inspection by the Shareholder, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Shareholder or any underwriter, financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and (if cause the Company’s officers, directors, employees and independent accountants to supply all other information reasonably requested by the Shareholder or any such Personunderwriter, attorney, accountant or agent in connection with such Registration Statement;
(k) confirm if such advice sale is pursuant to an underwritten offering, use reasonable best efforts to obtain “comfort” letters dated the pricing date of the offering of the Registrable Securities and the date of the closing under the underwriting agreement from the Company’s independent public accountants in writingcustomary form and covering such matters of the type customarily covered by “comfort” letters in connection with underwritten offerings as the managing underwriter reasonably requests;
(l) use reasonable best efforts to furnish, (1) when at the Prospectus request of the Shareholder on the date such securities are delivered to the underwriters for sale pursuant to such registration or any Prospectus supplement or post-effective amendment has been filedare otherwise sold pursuant thereto, andan opinion and a “10b-5” letter, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters covering such legal and other matters with respect to the registration in respect of which such opinion is being given and such letter is being delivered as the underwriters may reasonably request and are customarily included in such opinions and letters;
(m) subject to Section 5.2, use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement or any post-registering such Registrable Securities;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable after the effective amendmentdate of the Registration Statement, when an earnings statement covering the same has become effectiveperiod of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, (2which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(o) reasonably cooperate with the Shareholder 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 FINRA;
(p) notify in writing the Shareholder and the underwriter, if any, of the following events as promptly as reasonably practicable:
(i) the effectiveness of any such Registration Statement;
(ii) any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, information and when same has been filed and become effective;
(3iii) of the issuance by the Commission 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
(4iv) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws Laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(q) to the extent reasonably required in writing by the lead managing underwriters with respect to an underwritten offering relating to the registration of Equity Securities having an aggregate value of at least $200,000,000, agree, and cause the directors or officers of the Company to agree, to enter into customary agreements restricting the sale or distribution of Equity Securities during the period commencing on the date of the request (which shall be no earlier than fourteen (14) calendar days prior to the expected “pricing” of such jurisdictions underwritten offering) and continuing for not more than ninety (90) calendar days after the date of the “final” prospectus (or “final” prospectus supplement if the underwritten offering is made pursuant to a Shelf Registration Statement), pursuant to which such underwritten offering shall be made, plus an extension period, as any seller may be proposed by the lead managing underwriters to address FINRA regulations regarding the publishing of research, or underwriter reasonably requests in writing and do any and such lesser period as is required by the lead managing underwriters; and
(r) use reasonable best efforts to take all other acts or things steps reasonably necessary or advisable to enable effect the disposition in such jurisdictions registration of the Registrable Securities covered contemplated hereby. If any such registration or comparable statement refers to the Shareholder by name or otherwise as the holder of any securities of the Company and if the Shareholder is or would be reasonably expected to be deemed to be a controlling person of the Company, the Shareholder shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to the Shareholder and presented to the Company in writing, to the effect that the holding by the Registration StatementShareholder of such securities is not to be construed as a recommendation by the Shareholder of the investment quality of the Company’s securities covered thereby and that such holding does not imply that the Shareholder shall assist in meeting any future financial requirements of the Company or (ii) in the event that such reference to the Shareholder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to the Shareholder; provided that with respect to this clause (ii) the Shareholder must furnish to 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions opinion of counsel to the Company such effect, which opinion and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in . In connection with primary underwritten offerings; (4) if an underwriting agreement any Registration Statement in which the Shareholder is entered intoparticipating, the same Shareholder shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect furnish to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 affidavits as the Company reasonably may from time to time reasonably request specifically for use in writingconnection with any such Registration Statement or prospectus. Each holder Upon notice by the Company to the Shareholder of any Blackout Period, the Shareholder shall keep the fact of any such notice strictly confidential, and during any Blackout Period, discontinue its offer and disposition of Registrable Securities pursuant to the applicable Registration Statement and the prospectus relating thereto for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such prospectus or prospectus supplement. The Shareholder agrees by acquisition of such Registrable Securities that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(kclauses (f), (o)(ii), (o)(iii) hereofor (o)(iv) above, such holder will it shall forthwith discontinue its offer and disposition of Registrable Securities pursuant to the applicable Registration Statement and the prospectus relating thereto until such holder's its receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 6(k) hereofclause (o)(ii), or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in the Prospectus, 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 such notice. In the event prospectus; provided that the Company shall give any such notice, use its reasonable best efforts to supplement or amend the applicable Registration Statement and prospectus as promptly as practicable and shall extend the time periods regarding under clause (a) above with respect to the maintenance length of time that effectiveness of a Registration Statement must be maintained by the amount of time that the Shareholder is required to discontinue disposition of such Registrable Securities. The Company shall use its reasonable best efforts to maintain the effectiveness of a Registration Statement shall be extended by the on Form F-6 which registers a number of days during ADSs that is sufficient to allow the period from Shareholder to exercise its rights under, and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of sell its Registrable Securities covered by such Registration Statement shall have received in the copies of United States in the supplemented or amended prospectus manner contemplated by Section 6(k) hereof or the Adviceby, this Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (Allergan PLC), Shareholder Agreements (Teva Pharmaceutical Industries LTD)
Registration Procedures. In connection with If and whenever the Company's Company is required to use commercially reasonable efforts to effect or cause the registration obligations pursuant to Section 3 hereofof any Registrable Securities under the Securities Act as provided in this Agreement, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofwill, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements with respect to such Registrable Securities on any appropriate form under for which the Securities ActCompany 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 or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts to cause such Registration Statement to become and remain effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC amendments and post- effective amendments to such Registration Statement and such amendments and post-effective amendments supplements to the Registration Statement Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder for shelf registration or otherwise necessary to keep the such Registration Statement effective for up to 90 days (except to the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; extent otherwise provided in Section 4(b) with respect to a Designated Shelf Registration) and 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 to otherwise 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 the applicable period earlier of (x) such 90th day (except to the extent otherwise provided in accordance Section 4(b) with the intended method or methods of distribution respect to a Designated Shelf Registration) and (y) such time as all Registrable Securities covered by the sellers thereof set forth in such Registration Statement or supplement have ceased to the Prospectus; be Registrable Securities (it being understood that the Company shall not be deemed at its option may determine to have used its best efforts maintain such effectiveness for a longer period, whether pursuant to keep a Shelf Registration or otherwise); PROVIDED that a reasonable time before filing a Registration Statement effective during or Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it under the applicable period if it voluntarily takes any action that would result in selling holders of Exchange Act and the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken rules and regulations adopted by the Company in good faith and for valid business reasonsSEC thereunder), including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with will furnish to the requirements Holders, the managing underwriter and their respective counsel for review and comment, copies of Section 6(k), if applicableall documents proposed to be filed and will not file any such documents (other than as aforesaid) to which any of them reasonably object prior to the filing thereof;
(c) furnish to each Holder of such Registrable Securities such number of copies of such Registration Statement and of each amendment and post-effective amendment thereto (in each case including all exhibits), any Prospectus or Prospectus supplement and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in the last paragraph of this Section 7) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(d) 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 Holder shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 7(d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any such jurisdiction;
(e) notify each Holder 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 selling holders Securities Act within the appropriate period mentioned in Section 7(b), of the 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 a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such Holder, prepare and furnish to such Holder a reasonable number of copies of an amendment or supplement to such Registration Statement or related 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 light of the circumstances then existing;
(f) notify each Holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested covered by such Registration Statement at any such Person) confirm such advice in writing, time,
(1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, ;
(3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation or any overt threats of any proceedings for such purposes;
(4) of the receipt by 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 or any overt threats of any proceeding for that purpose, ; and
(45) if at any time the representations and warranties of the Company contemplated by paragraph (oparagraph(i)(1) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 otherwise use its best efforts to each selling holder of Registrable Securities comply with all applicable rules and the underwriters, if any, without charge, as many copies regulations of the Prospectus (including each preliminary prospectusSEC, and make available to its security holders an earnings statement which shall satisfy the provisions of Section 11(a) and any amendment or supplement thereto as such Persons may reasonably request; of the Securities Act, provided that the Company consents shall be deemed to have complied with this paragraph if it has complied with Rule 158 under 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement theretoAct;
(h) prior use commercially reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and cause all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in listed on any securities exchange on which the TWX Common Stock is then listed, if 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 are not already so listed and if such listing is then permitted under the rules of such exchange, and to the underwriters;
(j) use its best efforts to cause the provide a transfer agent and registrar for such Registrable Securities covered by the applicable such 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 underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not no later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(ni) enter into such agreements (including an underwriting agreementagreements) and take all such other appropriate and all commercially reasonable actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration:
(1) make such representations and warranties to the holders Holders of such Registrable Securities and the underwriters, if any, in form, scope and substance and scope as are customarily made by issuers to underwriters in primary firm commitment underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; offerings;
(2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders Holders of a majority in number of the Registrable Securities being sold) addressed to each selling holder such Holders and the underwriters, if any, underwriters covering the matters customarily covered in opinions requested in firm commitment underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders Holders of a majority in number of the Registrable Securities being sold and the managing underwritersunderwriter, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 2 contracts
Sources: Restructuring Agreement (Time Warner Inc), Registration Rights Agreement (Time Warner Inc)
Registration Procedures. In connection with If and whenever the Company's Company is required to use its reasonable best efforts to effect the registration obligations pursuant to of any Registrable Securities under the Securities Act as provided in Section 3 and Section 4 hereof, the Company will use its best efforts to shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate such form under the Securities Act, which form shall be available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its reasonable best efforts to cause such Registration Statement to become effectiveeffective and to remain effective as provided herein; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company will shall furnish or otherwise make available to the holders of the Registrable Securities covered by such Registration Statement Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the . The Company will shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Securities covered by such Registration Statement Statement, their counsel, or the managing underwriters, if any, shall reasonably object;, in writing, on a timely basis, unless, in the opinion of the Company, such filing is necessary to comply with applicable law.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for during the applicable period, or such shorter period which will terminate when provided herein with respect to the disposition of all Registrable Securities securities covered by such Registration Statement have been soldStatement; and cause the related Prospectus to be supplemented by any required Prospectus supplement, and supplement as so supplemented may be necessary to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all the securities covered by such Registration Statement during Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Act.
(c) notify the Notify each selling holders holder of Registrable Securities Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by paragraph (oSection 6(o) below cease to be true and correct, (5v) 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 jurisdiction, or the initiation or threatening of any proceeding for such purpose purpose, and (6vi) of the happening of any event which that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, 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 Prospectus statements therein, not 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 document incorporated therein by reference material fact necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(d) make every Use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or the holders of a holder majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly incorporate include in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and such holders may reasonably request in order to permit the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan intended method of distribution with respect to of such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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; securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the matters to be incorporated Company, in such Prospectus supplement or post-effective amendment;compliance with applicable law.
(f) furnish Furnish to each selling holder of Registrable Securities Securities, its counsel and each managing underwriter, if any, without charge, at least one signed conformed copy of the Registration Statement Statement, the Prospectus and any Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference reference, and all exhibits (including those incorporated exhibits, unless requested in writing by referencesuch holder, counsel or underwriter);.
(g) deliver Deliver to each selling holder of Registrable Securities Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusform of Prospectus) and any each amendment or supplement thereto as such Persons may reasonably requestrequest in connection with the distribution of the Registrable Securities; and the Company Company, subject to the last paragraph of this Section 6, hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any such amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky "Blue Sky" laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts or things action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdiction; provided provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(i) cooperate Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold and not bearing any restrictive legends; after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the underwriters;securities.
(j) use Use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder's business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(6Section 6(c)(vi) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities.
(m) 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.
(n) Use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be authorized to be quoted on the Nasdaq National Market or listed on each a national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on which similar securities issued by the Company are then Nasdaq National Market or listed if on such exchange, as the case may be.
(o) Enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of such the Registrable Securities or being sold in connection therewith (including those reasonably requested by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration, (1i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings offerings, and, if true, confirm the same if and covering matters includingwhen requested, but not limited to, those set forth in (ii) use its reasonable best efforts to furnish to the Purchase Agreement; (2) obtain selling holders of such Registrable Securities opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and counsels to the selling holders of a majority of the Registrable Securities being sold) Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders counsel and underwriters; , (3iii) use its reasonable best efforts to obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants 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) who have certified the financial statements included in such Registration Statement, addressed to the each selling holders holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; , (4iv) if an underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures of substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; Section and (5v) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold sold, their counsel and the managing underwriters, if any, to evidence compliance with clause (kthe continued validity of the representations and warranties made pursuant to Section 6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement agreement, or as and to the extent required thereunder;.
(op) make Make available for inspection by a representative of the selling holders of a majority of the Registrable Securities, any underwriter participating in any such disposition pursuant to such registrationof Registrable Securities, if any, and any attorney attorneys or accountant accountants retained by the sellers such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the CompanyCompany and its subsidiaries, and cause the Company's officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by is not generally publicly available at the Company in writing as confidential time of delivery of such information shall be kept confidential by such Persons unless (i) disclosure of such records, information or documents is required by court or administrative order;, (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law, or (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person. 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 and, if requested by the Company, assist the Company in seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in securities of the Company or its subsidiaries in violation of law.
(pq) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings holders earning statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.t
Appears in 2 contracts
Sources: Registration Rights Agreement (Superior Well Services, INC), Registration Rights Agreement (Superior Well Services, INC)
Registration Procedures. In connection At such time as the Company is obligated to file a Registration Statement with the Company's registration obligations SEC pursuant to Section 3 hereof2, the Company will use its best commercially reasonable efforts to effect such the registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution disposition thereof and shall include all financial statements required by the SEC to be filed therewithand, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements pursuant thereto, the Company will furnish shall have the following obligations:
a. The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times until the holders earlier of (i) the date as of which each Investor may sell all of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed without restriction pursuant to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto Rule 144 (or any Prospectus successor thereto) promulgated under the 1933 Act and is not otherwise prohibited by the SEC or any supplement thereto statute, rule, regulation or other applicable law from selling any such Registrable Securities pursuant to such Rule or (ii) the date on which the holders of a majority each Investor shall have sold all of the Registrable Securities covered by such Registration Statement (the “Registration Period”). The Company shall use commercially reasonable efforts to ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the underwritersstatements therein (in the case of prospectuses, if any, in the light of the circumstances in which they were made) not misleading.
b. The Company shall reasonably object;
(b) prepare and file with the SEC such amendments and (including post-effective amendments amendments) and supplements to the a Registration Statement as may be necessary to keep and the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by prospectus used in connection with such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplementStatement, and as so supplemented which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities 1933 Act; and , as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all securities Registrable Securities of the Company covered by such Registration Statement during the applicable period until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-Q, Form 10-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
c. The Required Holders shall have the right to select one legal counsel to review and oversee any registration pursuant to this Agreement (“Legal Counsel”), as designated by the Required Holders. The Company and Legal Counsel shall reasonably cooperate with each other in performing the Company’s obligations under this Agreement. The Company shall (A) permit Legal Counsel to review and comment upon (i) a Registration Statement at least five (5) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, and Reports on Form 10-Q and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the SEC or the staff of the SEC to the ProspectusCompany or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by the Investors, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto.
d. The Company shall furnish to the Investors, without charge, (i) promptly after the same is prepared and filed with the SEC, at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by the Investors, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as the Investors may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investors may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by the Investors.
e. The Company shall use commercially reasonable efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by Investors of the Registrable Securities covered by a Registration Statement under such other securities or “blue sky” laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be deemed required in connection therewith or as a condition thereto to have used its best efforts (x) qualify to keep a Registration Statement effective during the applicable period if do business in any jurisdiction where it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able otherwise be required to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and qualify but for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of this Section 6(k3(e), if applicable;
(cy) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by subject itself to general taxation in any such Personjurisdiction, or (z) confirm file a general consent to service of process in any such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations jurisdiction. The Company shall promptly notify Legal Counsel and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) Investors of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.
f. The Company shall notify Legal Counsel and Investors in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a 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 (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 3(o), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to Legal Counsel and Investors (or such other number of copies as Legal Counsel or Investors may reasonably request). The Company shall also promptly notify Legal Counsel and Investors in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and Investors by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. The Company shall use commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify Legal Counsel and Investors of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threatening threat of any proceeding for such purpose and (6) purpose.
h. The Company shall notify the Investors in writing of the happening of any event event, as promptly as practicable after becoming aware of such event, as a result of which makes any statement made the prospectus included in the a Registration Statement, the Prospectus as then in effect, includes an untrue statement of a material fact or any document incorporated omission to state a material fact required to be stated 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 in order necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;misleading (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 3(o), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to the Investors (or such other number of copies as the Investors may reasonably request).
i. The Company shall promptly notify the Investors in writing (di) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investors by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
j. The Company shall hold in confidence and not make every reasonable effort any disclosure of information concerning the Investors provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
k. The Company shall cooperate with the withdrawal Investors and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any order suspending restrictive legend) representing the effectiveness of the Registrable Securities to be offered pursuant to a Registration Statement at and enable such certificates to be in such denominations or amounts, as the earliest possible moment;case may be, as the Investors may reasonably request and registered in such names as the Investors may request.
(e) if l. If requested by an Investor, the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly Company shall (i) as soon as practicable incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should Investor reasonably requests to be included therein relating to the plan sale and distribution of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered or sold, the purchase price being paid therefor by such 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 (ii) as soon as practicable make all required filings of such Prospectus prospectus supplement or post-effective amendment as soon as after being notified of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;
; and (fiii) furnish as soon as practicable, supplement or make amendments to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the any Registration Statement and if reasonably requested by an Investor holding 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the .
m. 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) shall use its best commercially reasonable efforts to cause the Registrable Securities covered by the applicable a 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 underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the n. The Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SECSEC in connection with any registration hereunder.
o. Notwithstanding anything to the contrary herein, at any time after the Effective Date, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace Period”); provided, that the Company shall promptly (i) notify the Investors in writing of the existence of material, non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the Investors) and the date on which the Grace Period will begin, and make generally available (ii) notify the Investors in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed sixty (60) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of one hundred twenty (120) days and the first day of any Grace Period must be at least two (2) trading days after the last day of any prior Grace Period (each, an “Allowable Grace Period”). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive the notice referred to its security holders, earnings statements satisfying in clause (i) and shall end on and include the later of the date the Investors receive the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 11(a3(g) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Securities ActGrace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no later than 45 days after longer applicable. Notwithstanding anything to the end contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of an Investor in connection with any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end sale of any fiscal quarter in which Registrable Securities are sold with respect to underwriters in which such Investor has entered into a firm or best efforts underwritten offeringcontract for sale, or (2) if not sold to underwriters in such an offering, beginning with the first month and delivered a copy of the Company's first fiscal quarter commencing after the effective date prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such prospectus delivery requirements exists), which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's Investor’s receipt of the copies notice of a Grace Period and for which the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and Investor 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicenot yet settled.
p. The C
Appears in 2 contracts
Sources: Registration Rights Agreement (Bonds.com Group, Inc.), Registration Rights Agreement (Bonds.com Group, Inc.)
Registration Procedures. In connection with the ----------------------- Company's registration obligations pursuant to under Section 3 2.1 hereof, the Company will use its best efforts to shall effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof disposition thereof, and pursuant thereto the Company shall include all financial statements required as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the SEC to be filed therewith, cooperate and assist holders thereof in any filings required to be made accordance with the NASDintended method or methods of distribution thereof, and use best its reasonable efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided provided, that before filing a -------- any such Registration Statement or Prospectus or any amendments or supplements thereto, thereto (other than documents that would be incorporated or deemed to be incorporated therein by reference and that the Company will is required by applicable securities laws or stock exchange requirements to file) the Company shall furnish to the holders of Initial Stockholders, the Registrable Securities covered by such Registration Statement Initiating Holders, the Special Counsel and the underwritersManaging Underwriters of such offering, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of the Initial Stockholders, the Initiating Holders, the Special Counsel and such holders and underwritersManaging Underwriters, and the Company will shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (other than such documents which, upon filing, would be incorporated or deemed to be incorporated by reference therein and that the Company is required by applicable securities laws or stock exchange requirements to file) to which the holders of a majority of the Registrable Securities covered by such Registration Statement Statement, the Initial Stockholders, the Initiating Holders or the underwriters, if any, Special Counsel shall reasonably object;object in writing within two full Business Days.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified in Section 2.1; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify Notify the selling holders of Registrable Securities Series B Securityholders, the Initial Stock holders, the Initiating Holders, the Special Counsel and the managing underwritersManaging Underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice notice in writing, (1i) when the Prospectus or a Prospectus, any Prospectus supplement supplement, a Registration Statement or a post-effective amendment to a Registration Statement has been filedfiled with the SEC, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, and of the contents of such request, (3iii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation or threatening of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6v) of the existence of any fact or happening of any event which makes any statement made of a material fact in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which requires would require the making of any changes in the Registration Statement or Prospectus in order that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not 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 or omit to state 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, provided that -------- the Company shall not be required to disclose such fact or event if such fact or event has not been publicly disclosed, and (vi) of the Company's determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) make every Use all reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;.
(e) if If reasonably requested by an Initial Stockholder, the managing underwriter Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or underwriters or the holders of a holder majority of the Registrable Securities being sold in connection with an underwritten offeringsold, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such information as the managing underwriters and Initial Stockholders, the holders Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or such holders, in connection with any offering of a majority of the Registrable Securities being sold Securities, agree should be included therein relating to the plan of distribution with respect to such Registrable Securitiesas required by applicable law, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon promptly as notified is practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; provided, that -------- the Company shall not be required to take any actions under this Section 2.2(e) that are not, in the reasonable opinion of counsel for the Company, in compliance with or required by applicable law.
(f) furnish Furnish to each selling holder of Registrable Securities Series B Securityholder, the Special Counsel, the Initial Stockholders, and each managing underwriterManaging Underwriter, if any, without charge, at least one signed conformed copy of the Registration Statement or Statements and any post-effective amendment thereto, including financial statements and but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated unless requested in writing by referencesuch Series B Securityholder, Special Counsel, Initial Stockholders, or Managing Underwriter);.
(g) deliver Deliver to each selling holder of Registrable Securities Securities, the Special Counsel, the Initial Stockholders, and the underwriterseach Managing Underwriter, if any, in connection with any offering of Registrable Securities, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; and the Company hereby consents to the use of the such Prospectus or any each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the any offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling holders of Registrable SecuritiesSeries B Securityholders, the underwritersManaging Underwriters, if any, and their respective counsel the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller selling Series B Securityholder or underwriter Managing Underwriter reasonably requests in writing to the Company; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided provided, that the -------- Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject;.
(i) Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of a selling holder of Registrable Securities, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the selling holder or holders thereof or the Managing Underwriters, if any, to consummate the disposition of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral Period), immediately upon the existence of any fact or the occurrence of any event as a result of which a Registration Statement shall 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, or a Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, promptly prepare and file a post-effective amendment to each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document (such as a Current Report on Form 8-K) that would be incorporated by reference into the Registration Statement so that the Registration Statement 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, and so that the Prospectus will not contain any untrue statement of a material fact or omit to state any material fact or omit to state 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, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, use all reasonable efforts to cause it to become effective as promptly as is practicable.
(k) Enter into such agreements (including, in the event of an Underwritten Offering, an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including, in the event of an underwritten offering, those reasonably requested by the Managing Underwriters, if any, or the holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into, and if the registration is an underwritten registration, (i) make such representations and warranties, subject to the Company's ability to do so, to the holders of such Registrable Securities and the underwriters with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are 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 counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters, if any, Special Counsel and the holders of a majority of the Registrable Securities being sold) addressed to each of the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Special Counsel and Managing Underwriters; (iii) obtain "comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or any business acquired or to be acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to each of the Managing Underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters in connection with Underwritten Offerings; and (iv) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, the Special Counsel and the Managing Underwriters, if any, to evidence the continued validity of the representations and warranties of the Company and its subsidiaries made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company.
(l) If requested in connection with a disposition of Registrable Securities pursuant to a Registration Statement, make available for inspection by a representative of the holders of Registrable Securities and the managing underwritersbeing sold, any Managing Underwriter participating in any disposition of Registrable Securities, if any, and any attorney or accountant retained by such selling holders or underwriter, financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the executive officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, Managing Underwriter, attorney or accountant in connection with such disposition; subject to reasonable written assurances by each such person that such information will only be used in connection with matters relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC and make generally available to its securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period 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 commitment or best efforts underwritten offering, and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of a Registration Statement, which statements shall cover said 12-month periods.
(n) Cooperate with the selling Series B Securityholders 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.Series B S
Appears in 2 contracts
Sources: Registration Rights Agreement (Union Labor Life Insurance Co), Stock Purchase and Sale Agreement (Union Labor Life Insurance Co)
Registration Procedures. (a) In connection with the Company's registration obligations Registration and/or sale of Registrable Securities pursuant to Section 3 hereofthis Agreement, through an Underwritten Offering or otherwise, the Company will shall use its reasonable best efforts to effect such registration to permit or cause the Registration and the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibledisposition thereof and:
(ai) prepare and file with the SECrequired Registration Statement, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form including all exhibits and financial statements required under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC Act to be filed therewith, cooperate and assist in any filings required to be made before filing with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing SEC a Registration Statement or Prospectus Prospectus, or any amendments or supplements thereto, the Company will (A) furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, and to the Holders participating in such Registration, copies of all such documents proposed prepared to be filed, which documents will be subject to the reasonable review of such holders underwriters and underwriterssuch participating Holders and their respective counsel, and the Company will not file (B) consider in good faith any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority comments of the Registrable Securities covered by underwriters and Holders and their respective counsel on such Registration Statement or the underwriters, if any, shall reasonably objectdocuments;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for in accordance with the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus terms of this Agreement and 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 with respect to the disposition of all securities covered by of the Shares Registered thereon;
(iii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such Registration Statement during and the applicable period Prospectus used in accordance with the intended method or methods of distribution by the sellers thereof set forth in connection therewith as may be necessary to keep such Registration Statement or supplement effective and to comply with the provisions of the Securities Act with respect to the Prospectus; disposition of all Shares subject thereto for a period ending on the Company shall not be deemed to have used its best efforts to keep a 3rd anniversary after the effective date of such Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(civ) notify the selling holders of Registrable Securities participating Holders and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personrequested) confirm such advice in writingwriting and provide copies of the relevant documents, as soon as reasonably practicable after notice thereof is received by the Company (1A) when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, or when the applicable Prospectus or any amendment or supplement to such Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any written comments by the SEC or any request by the SEC or any other Governmental Authority for amendments or supplements to the such Registration Statement or the such Prospectus or for additional information, (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the 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 that purposesuch purposes, (4D) if if, at any time time, the representations and warranties of the Company contemplated by paragraph (o) below in any applicable underwriting agreement cease to be true and correctcorrect in all material respects, and (5E) 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 purpose;
(v) promptly notify each selling Holder and (6) the managing underwriter or underwriters, if any, when the Company becomes aware of the happening occurrence of any event as a result of which makes any statement made in the applicable Registration Statement, Statement or the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact 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 in order 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 misleadingmisleading 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;
(dvi) make every use its reasonable effort best efforts to prevent or obtain the withdrawal of any stop order or other order suspending the effectiveness use of the Registration Statement at the earliest possible momentany preliminary or final Prospectus;
(evii) if 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 underwriters underwriters, if any, and the holders Holders may reasonably request to be included therein in order to permit the intended method of a majority distribution 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 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;
(fviii) furnish to each selling holder of Registrable Securities Holder and each managing underwriter, if any, without charge, at least one signed copy 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);
(gix) deliver to each selling holder of Registrable Securities Holder and the underwriterseach underwriter, if any, without charge, as many copies of the applicable Prospectus (including each preliminary prospectusProspectus) and any amendment or supplement thereto as such Persons Holder or underwriter may reasonably request; request (it being understood that the Company consents to the use of the such Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities Holder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder or underwriter;
(hx) on or prior to any public offering of Registrable Securitiesthe date on which the applicable Registration Statement is declared effective or becomes effective, use its reasonable best efforts to register or qualify or qualify, and cooperate with the each selling holders of Registrable SecuritiesHolder, the managing underwriter or underwriters, if any, and their respective counsel counsel, in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky sky” laws of such jurisdictions each state and other jurisdiction of the United States as any seller selling Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts or things reasonably necessary or advisable to enable keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to 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 covered by the 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(ixi) cooperate in connection with the selling holders 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 enable to register such Registrable Securities to be in such denominations and registered in such names as such selling Holder or the managing underwriters underwriter(s), if any, may request at least two business days Business Days prior to any such sale of Registrable Securities to Securities; provided that the underwritersCompany may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(jxii) cooperate and assist in any filings required to be made with the FINRA and each securities exchange, if any, on which any of the Company’s securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company’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 the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(mxiii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary The Depository Trust Company; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(nxiv) enter into such agreements (including in the case of an Underwritten Offering, obtain for delivery to and addressed to the selling Holders and the underwriter or underwriters, an opinion from the Company’s outside counsel in customary form and content for the type of Underwritten Offering, dated the date of the closing under the underwriting agreement;
(xv) in the case of an Underwritten Offering, obtain for delivery to and take all such other actions addressed to the underwriter or underwriters and, to the extent agreed by the Company’s independent certified public accountants, each selling Holder, a comfort letter from the Company’s independent certified public accountants (and the independent certified public accountants with respect to any acquired company financial statements) in customary form and content for the type of Underwritten Offering, including with comfort letters customarily delivered in connection therewith in order with quarterly period financial statements if applicable, dated the date of execution of the underwriting agreement and brought down to expedite or facilitate the disposition closing under the underwriting agreement;
(xvi) use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, as soon as reasonably practicable, but no later than 90 days after the end of the 12-month period beginning with the first day of the Company’s first quarter commencing after the effective date of the applicable Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder and covering the period of at least 12 months, but not more than 18 months, beginning with the first month after the effective date of the Registration Statement;
(xvii) 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;
(xviii) cause all Registrable Securities covered by the applicable Registration Statement to be listed on each securities exchange on which any of the Company’s Class A Common Shares are then listed or quoted and on each inter-dealer quotation system on which any of the Company’s Class A Common Shares are then quoted, including the filing of any required supplemental listing application;
(xix) provide (A) each Holder participating in such connectionthe Registration, whether or not (B) the underwriters (which term, for purposes of this Agreement, shall include a Person deemed to be an underwriting agreement is entered into and whether or not underwriter within the registration is an underwritten registration (1meaning of Section 2(11) make such representations and warranties to of the holders of such Registrable Securities and the underwritersAct), if any, in formof the Registrable Securities to be Registered, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in (C) the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriterssale or placement agent therefor, if any, (D) counsel for such underwriters or agent, and the holders of a majority of the Registrable Securities being sold(E) addressed to each selling holder and the underwritersany attorney, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such accountant or other matters as may be reasonably requested agent or representative retained by such holders Holder or any such underwriter, as selected by such Holder, the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or filed with the SEC, and underwriters; (3) obtain "cold comfort" letters each amendment or supplement thereto, and updates thereof from to require the Company's independent certified public accountants addressed insertion therein of material, furnished to the selling holders Company in writing, which in the reasonable judgment of Registrable Securities such Holder(s) and the underwriters, if any, such letters to their counsel should be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Sectionincluded; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of for a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and reasonable period prior to the extent required thereunder;
(o) filing of such Registration Statement, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating parties referred to in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter(A) through (E) above, all pertinent financial and other records, pertinent corporate documents and properties of the Company that are available to the Company, and cause the Company's ’s officers, directors employees and employees the independent public accountants who have certified its financial statements to make themselves available at reasonable times and for reasonable periods, to discuss the business of the Company and to supply all information available to the Company reasonably requested by any such representative, underwriter, attorney or accountant Person in connection with such registration; Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility, subject to the foregoing, provided that any recordssuch Person gaining access to information or personnel pursuant to this Section 2.04(a)(xix) shall agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (x) the release of such information is required by law or regulation or is requested or required by deposition, interrogatory, requests for information or documents that are designated by a governmental entity, subpoena or similar process, (y) such information is or becomes publicly known without a breach of this Agreement, (F) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company in writing as confidential shall be kept confidential or (z) such information is independently developed by such Persons unless disclosure of such records, information or documents is required by court or administrative orderPerson;
(pxx) otherwise use its best efforts to comply with all applicable rules and regulations cause the executive officers of the SECCompany to participate in the customary “road show” presentations that may be reasonably requested by the managing underwriter or underwriters in any Underwritten Offering and otherwise to facilitate, cooperate with, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter participate in which Registrable Securities are sold to underwriters in a firm or best each proposed offering contemplated herein and customary selling efforts underwritten offering, or (2) 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 12-month periodsrelated thereto; and
(qxxi) promptly prior take all other customary steps reasonably necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing Registration, offering and sale of the Registrable Securities.
(b) As a condition precedent to any Registration Statement)hereunder, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities Holder as to which any registration 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, its ownership of Registrable Securities and other matters as the Company may from time to time reasonably request in writing. Each holder such Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of Registrable Securities this Agreement.
(c) Each Holder agrees by acquisition of such Registrable Securities that, upon receipt of any written notice from the Company of the happening occurrence of any event of the kind described in Section 6(k) hereof2.04(a)(v), such holder Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such holder's Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof2.04(a)(v), or until it such Holder is advised in writing (the "Advice") 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 Holder will deliver to the Company (at the Company's ’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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.all
Appears in 2 contracts
Sources: Registration Rights Agreement (StoneCo Ltd.), Registration Rights Agreement (StoneCo Ltd.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, If and whenever the Company will is required by ----------------------- the provisions of this Warrant to use its best efforts to effect such the registration to permit of any of the sale of such Registrable Shares under the Securities in accordance with the intended method or methods of distribution thereofAct, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with furnish to the SEC, Registered Holder such number of copies as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form Registered Holder shall be available for the sale reasonably request of the Registrable Securities in accordance with the intended method or methods of distribution thereof prospectus, including a preliminary prospectus and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, in conformity with the Company will furnish to the holders requirements of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectAct;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause register or qualify the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities Shares covered by the Registration Statement to be listed on each under the securities exchange on which similar securities issued by laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company are then listed -------- ------- shall not be required in connection with this subsection 20(b) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(c) promptly notify the Registered Holder, if the Company has delivered preliminary or final prospectuses to the Registered Holder and after having done so, the prospectus is amended to comply with the requirements of the Securities Act and, if requested by the holders Company, the Registered Holder shall immediately cease making offers or sales of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of Shares under the Registration Statement, provide a CUSIP number for Statement and return all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order prospectuses to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of the revised prospectuses, the Registered Holder shall be done at each closing under such underwriting or similar agreement or as free to resume making offers and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority sales of the Registrable SecuritiesShares; and
(d) pay the expenses incurred by it in complying with its obligations under this Warrant in connection with registration rights, any underwriter participating in any disposition pursuant to such registrationincluding all registration and filing fees, exchange listing fees, expenses for the preparation of the Registration statement, prospectus and any attorney or accountant retained by the sellers or underwriteramendments and supplements thereto, all financial printing and other recordsphotocopy expenses, pertinent corporate documents fees and properties expenses of counsel for the Company, and cause fees and expenses of accountants for the Company's officers, directors and employees to supply all information reasonably requested but excluding: (i) selling commissions or underwriting discounts incurred by any such representative, underwriter, attorney or accountant the Registered Holder in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure sales of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into Shares under the Registration Statement or and (ii) the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities fees and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt expenses of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") counsel retained 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceRegistered Holder.
Appears in 2 contracts
Sources: Common Stock Purchase Warrant (Igi Inc), Common Stock Purchase Warrant (Igi Inc)
Registration Procedures. In connection with the Company's registration obligations Whenever any Registrable Securities are to be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best commercially reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) prepare and file with the SEC, SEC as soon promptly as practicable, practicable a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become effective; effective (provided that before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the Statement, their underwriters, if any, and their respective counsel and accountants, within a reasonable time prior to the filing thereof, copies of all such documents proposed to be filed, which documents will be subject to and such holders shall have the reasonable review of opportunity to object to any information pertaining to such holders and underwriters, that is contained therein and the Company will not file make the corrections reasonably requested by such holders with respect to such information prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectprospectus);
(b) notify each holder of Registrable Securities of the effectiveness of each Registration Statement filed hereunder and prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for a period of not less than the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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; Lock-up Period and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement;
(c) furnish, without charge, to each seller of Registrable Securities such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits and all documents incorporated therein by reference), the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) use its commercially reasonable efforts to register or supplement qualify such Registrable Securities and other securities covered by such Registration Statement under such securities laws or blue sky laws of such jurisdictions as any seller reasonably requests, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the Prospectus; disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company shall not be deemed required to have used its best efforts (i) qualify generally to keep do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any such seller, the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall 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;
(f) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on the Nasdaq Global Market or other national securities exchange if the securities qualify to be so listed;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than the effective during 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 applicable period if it voluntarily takes any action that would result in selling holders of a majority of the Registrable Securities covered thereby not being able sold or the underwriters, if any, reasonably request in order to sell expedite or facilitate the disposition of such Registrable Securities during that (including 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 commercially 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 covering the period unless of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities, which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such action is required under applicable lawregistration or comparable statement and to require the insertion therein of material, provided that the foregoing shall not apply furnished to actions taken by the Company in good faith writing, which in the reasonable judgment of such holder and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableits counsel should be included;
(cl) 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 common stock included in such Registration Statement for sale in any jurisdiction, the Company shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;
(m) notify the selling holders sellers of Registrable Securities and the managing underwriters, if any, promptly, and as promptly as practicable:
(if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2i) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(3ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of any proceedings by any Person for that such purpose, ; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such jurisdictions as purpose;
(n) furnish for delivery in connection with the closing of any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions offering of Registrable Securities unlegended certificates representing ownership of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be being sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as shall be requested by the managing underwriters may request at least two business days prior to any sale of Registrable Securities to sellers or the underwriters;
(jo) promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the Commission as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto shall not be subject to review;
(p) use its best commercially reasonable efforts to cause the such Registrable Securities covered by the applicable such 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 underwriters, if any, to consummate the disposition of such Registrable Securities;; and
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2q) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof comfort letter from the Company's ’s independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering such matters of the type customarily covered in "by cold comfort" comfort letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause reasonably request (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company constitute at least 10% of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceStatement).
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Rex Energy Corp)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Section 3 hereofthe provisions of this Agreement, the Company will shall use its best commercially reasonable efforts to effect such registration to permit the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously soon as possiblereasonably practicable and as applicable:
(a) subject to Section 2, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become be declared effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and 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 with respect to the disposition of all securities covered by Registrable Securities subject thereto for a period ending on the earlier of (i) 6 months after the effective date of such Registration Statement during and (ii) the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of date on which all the Registrable Securities covered thereby not being able subject thereto have been sold pursuant to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableRegistration Statement;
(c) notify the selling holders of Registrable Securities and the managing underwriterswithin a reasonable time before filing such Registration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 thereto with the Commission, furnish to the Registration Statement or the Prospectus or for additional information, (3) of the issuance one counsel selected by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 underwriters and the holders of a majority of the Registrable Securities being sold agree should included in such Registration Statement, Prospectus or amendments or supplements thereto copies of such documents proposed to be included therein relating filed, which documents shall be subject to the plan review, comment and approval of distribution with respect to such counsel;
(d) notify each selling holder of Registrable Securities, includingpromptly after the Company receives notice thereof, without limitation, information with respect to of the number of Registrable Securities being sold to time when such underwriters, the purchase price being paid therefor by such underwriters and with respect Registration Statement has been declared effective or a supplement 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 required filings Prospectus forming a part of such Prospectus supplement or post-effective amendment as soon as notified of Registration Statement has been filed with the matters to be incorporated in such Prospectus supplement or post-effective amendmentCommission;
(fe) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy such number of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus included in such Registration Statement (including each preliminary prospectusProspectus) and any amendment or supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such other documents as such Persons seller may reasonably request; request in order to facilitate 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 connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(hf) prior use its commercially reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or “blue sky sky” laws of such jurisdictions as any seller or underwriter selling holder reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch holders; provided provided, that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified business, subject itself to general taxation or to take any action which would subject it consent to general service of process in any such jurisdiction where it is would not then otherwise be required to do so subjectbut for this Section 5(f);
(ig) cooperate with the notify each selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition holder of such Registrable Securities;
(k) upon , at any time when a Prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph (c)(6) abovethat would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the Company shall prepare a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(oh) make available for inspection by a representative any selling holder of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by any such holder or underwriter (collectively, the sellers or underwriter“Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant Inspector in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderRegistration Statement;
(pi) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;
(k) in connection with an underwritten offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making appropriate officers of the Company available to participate in “road show” and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Securities));
(l) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, holders an earnings statements satisfying statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act, Act and Rule 158 under the Securities Act or any successor rule thereto) no later than 45 thirty (30) days after the end of any the 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, beginning with the first month day of the Company's ’s first full fiscal quarter commencing after the effective date of the such Registration Statement, which statements earnings statement shall cover said 12-month periodsperiod, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) furnish to each selling holder of Registrable Securities and each underwriter, if any, with (i) a written legal opinion of the Company’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of registrants’ counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment to the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by the Company’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 5(f), use its commercially reasonable efforts to cause such 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 holders of such Registrable Securities to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;
(o) notify the holders of Registrable Securities promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(p) advise the holders of Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(q) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a Controlling Person of the Company, to participate in the preparation of such Registration Statement and to require the insertion therein of language, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(r) cooperate with the holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of The Depository Trust Company (“DTC”);
(s) not later than the effective date of such Registration Statement, 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 DTC; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of DTC;
(t) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to the Company, the Company will take all commercially reasonable action to make any such prohibition inapplicable; and
(qu) promptly prior otherwise use its commercially reasonable efforts to take all other steps necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicehereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, If and whenever the Company will is required to use its best efforts to effect such registration take action pursuant to any Federal or state law or regulation to permit the sale or other disposition of such any Registrable Securities that are then held or that may be acquired upon exercise of the Warrants in accordance with order to effect or cause the intended method or methods registration of distribution thereofany Registrable Securities under the Securities Act as provided in this Article 6, and pursuant thereto the Company will shall, as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, as soon as practicable, practicable within 90 days after the end of the period within which requests for registration may be given to the Company (but subject to the provisions for deferral contained in Section 6.2(a) hereof) a Registration Statement or Registration Statements relating to the registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC thereof, subject to be filed therewith, cooperate and assist in any filings required to be made with the NASDSection 6.1(d) hereof, and use its best efforts to cause such Registration Statement Statements to become effective; provided that before filing a Registration Statement or Prospectus or any amendments amendment or supplements thereto, including documents incorporated by reference after the initial filing of any Registration Statement, the Company will furnish to the holders Holders of the Registrable Securities covered by such Registration Statement Statements and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders Holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the a Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter a reasonable period which will terminate when all Registrable Securities covered by such Registration Statement have been soldnot to exceed 180 days; cause the related 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the such Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders Holders of Registrable Securities and the managing underwriters, if any, promptly, promptly and (if requested by any such Person) confirm such advice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, ; (2ii) of any request by the SEC for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, ; (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, ; (4iv) if at any time any of the representations and warranties of the Company contemplated by paragraph (om) below cease ceases to be true and correct, correct in all material respects; (5v) of the receipt by the Company 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 purposes; and (6vi) of the happening of any event which that makes any statement of a material fact 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 Statement or Prospectus so that they will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible moment;
(e) if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringunderwriters, promptly immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders believe (on advice of a majority of the Registrable Securities being sold agree counsel) should be included therein as required by applicable law relating to the plan such sale of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor for the Registrable Securities by such underwriters and with respect to any other terms of the underwritten (or "best efforts efforts" 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder Holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment theretotherein, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder Holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusProspectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the such Prospectus or any amendment or supplement thereto by each of the selling holders Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller selling Holder or underwriter reasonably requests in writing writing, keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in 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 the Company to general service of process in any such jurisdiction where it is not then at the time so subject;
(i) cooperate with the selling holders Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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 Business Days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6Section 6.4(c)(vi) above, prepare a post-effective amendment or supplement or posteffective amendment to the applicable Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(l) with respect to each issue or class of Registrable Securities, use its best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange or automated quotation system, if any, on which similar securities issued by the Company are then listed if requested by the holders Holders of a majority of such issue or class of Registrable Securities or the managing underwriters, if anySecurities;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an any underwriting agreement) and take all such other actions action reasonably required in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not if the registration is in connection with an underwritten registration offering (1i) make such representations and warranties to the holders of underwriters in such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (shall be in form, scope and substance) shall be substance reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3iii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4iv) if an underwriting agreement is entered into, the same shall set forth in full in any underwriting agreement entered into the indemnification provisions and procedures of Section 8 6.5 hereof with respect to all parties to be indemnified pursuant to said Section; and (5v) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, underwriters to evidence compliance with clause (ki) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The ; the above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderhereunder;
(on) make available for inspection by a representative one or more representatives of the holders Holders of a majority of the Registrable SecuritiesSecurities being sold, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers such Holders or underwriter, all financial and other recordsrecord, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representativerepresentatives, underwriter, attorney or accountant in connection with such registrationsuch; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;and
(po) otherwise use its best efforts to comply with all applicable rules Federal and regulations state regulations; and take such other action as may be reasonably necessary or advisable to enable each such Holder and each such underwriter to consummate the sale or disposition in such jurisdiction or jurisdictions in which any such Holder or underwriter shall have requested that the Registrable Securities be sold. Except as otherwise provided in this Agreement, the Company shall have sole control in connection with the preparation, filing, withdrawal, amendment or supplementing of each Registration Statement, the SECselection of underwriters, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end distribution of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter preliminary prospectus included in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) 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 12-month periods; and
(q) promptly prior to and may include within the filing coverage thereof additional shares of any document which is to be incorporated by reference into Common Stock or other securities for its own account or for the Registration Statement account of one or the Prospectus (after initial filing more of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestits other security holders. The Company may require each seller 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") otherwise be required by the Company that the use of the Prospectus may Securities Act to 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 deliver to the Company (at the Company's expense) all copies, other than permanent file copies then included 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceStatement.
Appears in 2 contracts
Sources: Warrant Agreement (Zevex International Inc), Warrant Agreement (Zevex International Inc)
Registration Procedures. In connection with the Company's registration obligations Registration to be effected pursuant to Section 3 hereofthe Resale Shelf Registration Statement, and whenever the Company will holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a takedown offering, Pubco shall use its reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Pubco shall as expeditiously as reasonably possible:
(a) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities ActStatement, which form shall and all amendments and supplements thereto and related prospectuses as may be available for the sale of the necessary to comply with applicable securities laws, with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement to become effective; effective (provided that at least two (2) Business Days before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will Pubco shall furnish to counsel selected by the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, Applicable Approving Party copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such holders and underwriterscounsel, and no such document shall be filed with the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto Commission to which the holders of a majority of the Registrable Securities covered by such Registration Statement any Investor or the underwriters, if any, shall its counsel reasonably objectobjects);
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders each holder of Registrable Securities and the managing underwriters, if any, promptly, and of (if requested by any such PersonA) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the any Registration Statement or the initiation of any proceedings for that purpose, (4B) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company Pubco or its counsel 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 purpose, and (6C) the effectiveness of each Registration Statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement and the prospectus used in connection therewith current, effective and available for the resale of all of the Registrable Securities required to be covered thereby for a period ending when all of the securities covered by such Registration Statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such Registration Statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such Registration Statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) 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 sellers thereof set forth in such Registration Statement;
(d) furnish to each seller of Registrable Securities thereunder 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 and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably 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 (provided that Pubco shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) 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 when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) subject to the MNPI Provisions after receipt thereof, of any request by the Commission for the amendment or supplementing of such Registration Statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which makes the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any statement made in fact necessary to make the Registration Statementstatements therein not misleading, and, at the Prospectus or any document incorporated therein by reference untrue or which requires the making request of any changes in such seller, Pubco promptly shall prepare, file with the Registration StatementCommission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the Prospectus purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any document incorporated therein by reference in order fact necessary to make the statements therein not misleading;
(dh) make every reasonable effort cause all such Registrable Securities to obtain be listed on each securities exchange on which similar securities issued by Pubco are then listed and, if similar securities are not so listed, to be listed on a securities exchange and, without limiting the withdrawal of any order suspending the effectiveness generality of the Registration Statement foregoing, to arrange for at the earliest possible moment;
(e) if 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 least two market makers to register as such information as the managing 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 SecuritiesSecurities with FINRA;
(i) if applicable, including, without limitation, information promptly effect a filing with FINRA pursuant to FINRA Rule 5110 (or successor thereto) with respect to the number public offering contemplated by resales of Registrable Securities being sold to such underwriterssecurities under the Resale Shelf Registration Statement (an “Issuer Filing”), pay the purchase price being paid therefor filing fee required by such underwriters Issuer Filing and with respect use its reasonable best efforts to any other pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the underwritten offering contemplated by the Resale Shelf Registration Statement.
(or best efforts underwrittenj) offering of the provide a transfer agent and registrar for all such Registrable Securities to be sold in such offering; and make all required filings not later than the effective date of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendmentRegistration Statement;
(fk) furnish to each selling holder of Registrable Securities enter into and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits perform such customary agreements (including those incorporated by reference);
(gunderwriting agreements in customary form) deliver to each selling holder of Registrable Securities and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without chargelimitation, if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, participating in such number of “road shows”, investor presentations and marketing events as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as underwriters managing such Persons offering may reasonably request);
(l) make available for inspection by a representative of the Investors, other than the Deerfield Investors (such representative to be selected by the Majority TOI Investors), a representative of the Deerfield Investors, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such representative or underwriter, all financial and other records, pertinent corporate and business documents and properties of Pubco as shall be reasonably requested to enable them to exercise their due diligence responsibility, and cause Pubco’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such representative, underwriter, attorney, accountant or agent in connection with such Registration Statement; provided, however, that any such representative or underwriter enters into a confidentiality agreement, in form and substance reasonably satisfactory to Pubco, prior to the Company consents release or disclosure of any such information;
(m) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Demand Registration (including any Shelf Registration) or Piggyback Registration hereunder 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, shall 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;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission;
(o) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of Pubco to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to Pubco in writing, which in the reasonable judgment of such holder and its counsel should be included;
(p) 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 Prospectus or qualification of any amendment or supplement thereto by each Common Stock included in such Registration Statement for sale in any jurisdiction, use its reasonable best efforts promptly to obtain the withdrawal of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the such order;
(q) use its reasonable best efforts to cause such Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kr) upon cooperate with the occurrence holders of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or and the managing underwritersunderwriter 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;
(ms) not later than the effective date cooperate with each holder of Registrable Securities covered by the Registration Statement, provide a CUSIP number for all Registrable Securities Statement and provide the applicable trustee(s) each underwriter or transfer agent(s) with printed certificates for the Registrable Securities which are agent participating in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(t) if such connection, whether or not an underwriting agreement is entered into and whether or not the registration is includes an underwritten registration (1) make such representations public offering, use its reasonable best efforts to obtain a cold comfort letter from Pubco’s independent public accountants and warranties addressed to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering such matters of the type customarily covered in "by cold comfort" comfort letters by as the underwriters in connection with primary such registration reasonably request;
(u) provide a legal opinion of Pubco’s outside counsel, dated the effective date of such Registration Statement (and, if such registration includes an underwritten offerings; (4) if an Public Offering, dated the date of the closing under the underwriting agreement is entered intoagreement), the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties the Registration Statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(v) if Pubco files an Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(w) if Pubco does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be indemnified sold;
(x) subject to the terms of Section 2(c) and Section 2(d), 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 Securities, and, if at any time when Pubco is required to re-evaluate its WKSI status Pubco determines that it is not a WKSI, use its reasonable best efforts to refile the Registration Statement on Form S-3 and keep such Registration Statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such Registration Statement is required to be kept effective;
(y) cooperate with each Investor that holds Registrable Securities being offered and the managing underwriter or underwriters with respect to an applicable Registration Statement, if any, to facilitate the timely (i) preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to said Section; such Registration Statement, and enable such certificates to be registered in such names and in such denominations or amounts, as the case may be, or (5ii) the Company shall deliver such documents and certificates as may be requested by the holders of a majority crediting of the Registrable Securities being sold and to be offered pursuant to a Registration Statement to the applicable account (or accounts) with The Depository Trust Company (“DTC”) through its Deposit/Withdrawal At Custodian (“DWAC”) system, in any such case as such Investor or the managing underwriter or underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information may reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periodsrequest; and
(qz) promptly prior for so long as this Agreement remains effective, (a) cause the Common Stock to be eligible for clearing through DTC, through its DWAC system; (b) be eligible and participating in the Direct Registration System (DRS) of DTC with respect to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus Common Stock; (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(kc) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company ensure that the use of transfer agent for the Prospectus may be resumedCommon Stock is a participant in, and has received copies that the Common Stock is eligible for transfer pursuant to, DTC’s Fast Automated Securities Transfer Program (or successor thereto); and (d) use its reasonable best efforts to cause the Common Stock to not at any time be subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the clearing of any additional or supplemental filings which are incorporated by reference in the Prospectusshares of Common Stock through DTC, 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 such notice. In the event the Company shall give Common Stock becomes subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, use its reasonable best efforts to cause any such notice, “chill,” “freeze” or similar restriction to be removed at the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Adviceearliest possible time.
Appears in 2 contracts
Sources: Registration Rights Agreement (Oncology Institute, Inc.), Merger Agreement (DFP Healthcare Acquisitions Corp.)
Registration Procedures. In connection with the Company's registration its obligations pursuant to Section 3 hereofunder this Article II, the Company will use its best efforts to effect such registration to permit (or the sale applicable Selling Holder in the case of such Registrable Securities Section 2.3(q)), will, as soon as is reasonably practicable (or otherwise within the applicable timeframe, if any, specified in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:this Agreement):
(a) prepare and file with the SEC, and use commercially reasonable efforts to cause to be declared or become effective, the Shelf Registration Statement and each other registration statement contemplated by this Agreement with respect to all Registrable Securities as soon as practicableprovided herein, a make all required filings with FINRA and use commercially reasonable efforts to keep such Shelf Registration Statement and such other registration statement continuously effective during the period such Shelf Registration Statement or such other registration statement is required to remain effective pursuant to the terms of this Agreement; upon the occurrence of any event that would cause the Shelf Registration Statements on any Statement or such other registration statement or the prospectus contained therein to contain a material misstatement or omission, the Company shall file an appropriate form under amendment to the Securities Shelf Registration Statement or such other registration statement, a supplement to the prospectus, or a report filed with the SEC pursuant to Section 13(a), 14 or 15(d) of the Exchange Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method correcting any such misstatement or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDomission, and the Company shall use best commercially reasonable efforts to cause such Registration Statement amendment to be declared or become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, effective and the Company will furnish to the holders of the Registrable Securities covered by such Shelf Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, other registration statement and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto related prospectus to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectbecome usable for their intended purposes as soon as practicable thereafter;
(b) (i) prepare and file with the SEC such amendments and post-effective amendments supplements to the Shelf Registration Statement and such other registration statement and the prospectus used in connection therewith as may be necessary to cause the Shelf Registration Statement and such other registration statement to be effective and to keep the Shelf Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, Effectiveness Period and as so supplemented may be necessary to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such the Shelf Registration Statement during the applicable period and such other registration statement; and (ii) if a prospectus supplement will be used in accordance connection with the intended method marketing of an Underwritten Offering or methods Overnight Underwritten Offering from a registration statement contemplated by this Agreement and the Managing Underwriter at any time shall notify the Selling Holders that, in the reasonable judgment of distribution such Managing Underwriter, inclusion of detailed information to be used in such prospectus supplement is of material importance to the success of the Underwritten Offering or Overnight Underwritten Offering of such Registrable Securities, or if such information is required by applicable law (including the rules and regulation of the SEC), include such information in a prospectus supplement; provided, that, before filing any registration statement, prospectus or any amendments or supplements thereto the Company shall provide reasonable advance notice thereof to the Holders and, if requested, furnish at no charge to the Holders of the Registrable Securities included or to be included in such registration statement (and to a single counsel for the Holders selected by the sellers thereof set forth holders of a majority of Registrable Securities) and the Managing Underwriter or underwriters (and to their counsel), if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five Business Days prior to such Registration Statement or supplement to the Prospectus; filing), and the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by file any such Person) confirm such advice in writing, (1) when the Prospectus registration statement or prospectus or any Prospectus supplement or post-effective amendment 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 thereto in respect of which the Holders have provided or must provide information for the inclusion therein without such Holders being afforded an opportunity to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) review such documentation if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor covered by such underwriters and with respect to any other terms of Registration Statement, or the underwritten (Managing Underwriter or best efforts 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without chargeor any of their respective counsel shall reasonably object in writing on a timely basis;
(c) furnish to each Selling Holder (i) as far in advance as reasonably practicable before filing the Shelf Registration Statement or any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement to be used in connection therewith or any supplement or amendment thereto, as many upon request, copies of reasonably complete drafts of all such documents proposed to be filed (including furnishing or making available exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), and provide each such Selling Holder the opportunity to object to any information pertaining to such Selling Holder and its plan of distribution that is contained therein and make the corrections reasonably requested by such Selling Holder with respect to such information prior to filing the Shelf Registration Statement or such other registration statement or any prospectus or prospectus supplement to be used in connection therewith or supplement or amendment thereto, and (ii) such number of copies of the Prospectus (including each preliminary prospectus) Shelf Registration Statement or such other registration statement and the prospectus included therein and any amendment or supplement supplements and amendments thereto as such Persons may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus public sale or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale other disposition of the Registrable Securities covered by the Prospectus Shelf Registration Statement or any amendment or supplement theretosuch other registration statement;
(hd) prior if applicable, use its commercially reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale covered by the Shelf Registration Statement or any other registration statement contemplated by this Agreement under the securities or blue sky laws of such jurisdictions as any seller the Selling Holders or, in the case of an Underwritten Offering or underwriter Overnight Underwritten Offering, the Managing Underwriter, shall reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; request, provided that the Company will not be required to qualify generally to do transact business in any jurisdiction where it is not then required to so qualified qualify 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;
(e) promptly notify each Selling Holder and each underwriter of Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of (i) cooperate the filing of the Shelf Registration Statement or any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement to be used in connection therewith, or any amendment or supplement thereto, and, with respect to such Shelf Registration Statement or any other registration statement or any post-effective amendment thereto contemplated by this Agreement, when the same has become effective; and (ii) any written comments from the SEC with respect to any filing referred to in clause (i) and any written request by the SEC for amendments or supplements to the Shelf Registration Statement or any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement thereto (provided that in no event shall such notice contain any material, non-public information regarding the Company or any of its subsidiaries);
(f) promptly notify each Selling Holder and each underwriter of Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of (i) the happening of any event as a result of which the prospectus or prospectus supplement contained in the Shelf Registration Statement or any other registration statement contemplated by this Agreement or any post-effective amendment thereto, 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; (ii) the issuance or threat of issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration Statement or any other registration statement contemplated by this Agreement, or the initiation of any proceedings for that purpose; or (iii) 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 (provided that in no event shall such notice contain any material, non-public information regarding the Company or any of its subsidiaries); and following the provision of such notice, the Company agrees to as promptly as practicable amend or supplement the prospectus or prospectus supplement or take other appropriate action as is necessary to remove a stop order, suspension, threat thereof or proceedings related thereto;
(g) furnish to each Selling Holder copies of any and all transmittal letters or other correspondence with the selling holders SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering of Registrable Securities (provided that in no event shall such letters or correspondence contain any material, non-public information regarding the Company or any of its subsidiaries);
(h) in the case of an Underwritten Offering or Overnight Underwritten Offering, furnish upon request and addressed to the underwriters and to the Selling Holders, (i) an opinion of counsel for the Company, dated the effective date of the applicable registration statement or the date of any amendment or supplement thereto, and a letter of like kind dated the date of the closing under the underwriting agreement, and (ii) a “comfort letter,” dated the effective date of the applicable registration statement or the date of any amendment or supplement thereto 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 (and, if applicable, independent reserve engineers) who have certified the Company’s financial statements (or prepared, reviewed or audited, as applicable, oil and gas reserves) included or incorporated by reference into the applicable registration statement, and each of the opinion and the managing underwriters“comfort letter” shall be in customary form and cover substantially the same matters with respect to such registration statement (and the prospectus and any prospectus supplement included therein) as are customarily covered in opinions of issuer’s counsel and in accountants’ (and, if anyapplicable, independent reserve engineers’) letters delivered to facilitate the timely preparation underwriters in Underwritten Offerings or Overnight Underwritten Offerings of securities, and delivery such other matters as such underwriters or Selling Holders may reasonably request;
(i) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of certificates representing Registrable Securities the SEC, and make available to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names its security holders, as soon as reasonably practicable, an earnings statement covering the managing underwriters may request period of at least two business days prior to any sale 12 months, but not more than 18 months, beginning with the first full calendar month after the effective date of Registrable such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities to the underwritersAct and Rule 158 promulgated thereunder;
(j) make available to the appropriate representatives of the Managing Underwriter and Selling Holders access to such information and the Company personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act; including, but not limited to, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and all pertinent financial and other records, and, upon receipt of such confidentiality agreements as the Company may reasonably request, make available for inspection by such appropriate representatives 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 representative;
(k) use its best commercially reasonable efforts to cause all Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by the Company are then listed or quoted;
(l) use its commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the seller or sellers thereof or the underwriters, if any, Selling Holders to consummate the disposition of such Registrable Securities;
(km) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare provide a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause transfer agent and registrar for all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) registration statement not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(n) enter into such customary agreements (including an underwriting agreement) and take all such other actions in connection therewith as are reasonably requested by the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders entry of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters book-entry with The Depository Trust Company (including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions making appropriate officers of counsel to the Company available to (i) prepare and updates thereof make presentations at any “road shows” before analysts and other customary marketing activities, (which counsel and opinions (ii) participate in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority one on one meetings with prospective purchasers of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5iii) the Company shall deliver such documents and certificates cooperate as may be requested by the holders of a majority underwriters in the offering, marketing or selling of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderSecurities);
(o) make available for inspection by a representative of the holders of a majority of cause the Registrable Securities to be initially represented by direct registration with the Company’s transfer agent and provide a CUSIP number for all Registrable Securities; and, any underwriter participating in any disposition pursuant to such registrationconnection therewith, and any attorney or accountant retained if reasonably required by the sellers or underwriterCompany’s transfer agent, all financial the Company shall promptly deliver any authorizations, certificates and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated directions required by the Company in writing as confidential shall be kept confidential transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by such Persons unless disclosure the holder of such records, information Registrable Securities under the Shelf Registration Statement or documents is required any other registration statement contemplated by court or administrative orderthis Agreement;
(p) otherwise use its best efforts if any Selling Holder could reasonably be deemed to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of be an “underwriter,” as defined in Section 11(a2(a)(11) of the Securities Act, no later than 45 days after in connection with the end registration statement in respect of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders registration of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document Selling Holder pursuant to this Agreement, and make any amendment or supplement thereof (any such changes registration statement or amendment or supplement, a “Holder Underwriter Registration Statement”), then, (i) until the Effectiveness Period ends, cooperate with such Selling Holder in allowing such document prior Selling Holder to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish conduct customary “underwriter’s due diligence” with respect to the Company and satisfy its obligations in respect thereof; (ii) until the Effectiveness Period ends, at any Selling Holder’s request, furnish to such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities thatSelling Holder, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including on the date of the giving effectiveness of any Holder Underwriter Registration Statement and thereafter no more often than on a quarterly basis when so requested, (A) a letter, dated such date, from the Company’s independent certified public accountants (and, if applicable, independent reserve engineers) in form and substance as is customarily given by independent certified public accountants (and, if applicable, independent reserve engineers) to underwriters in an underwritten public offering, addressed to such Selling Holder, (B) an opinion, dated as of such notice pursuant date, of counsel representing the Company for purposes of such Holder Underwriter Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, including a standard “10b-5” opinion for such offering, addressed to Section 6(c)(6such Selling Holder and (C) hereof to 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(k) hereof or the Advice.a standard officer’s certificate from
Appears in 2 contracts
Sources: Registration Rights Agreement (Riley Exploration - Permian, LLC), Registration Rights Agreement (Riley Exploration - Permian, LLC)
Registration Procedures. In connection with If and whenever the Company's Company is required to effect the registration obligations of any Registrable Securities pursuant to Section 3 hereofthis Agreement, the Company will shall use its best commercially reasonable efforts to effect such registration to permit and facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable and, and pursuant thereto thereto, the Company will shall as expeditiously as possiblepossible and as applicable:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Actwith respect to such Registrable Securities, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include make all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with in connection therewith and (if the NASD, and use best efforts to Registration Statement is not automatically effective upon filing) cause such Registration Statement to become effective; provided that before effective as promptly as practicable. Before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (excluding, for the avoidance of doubt, the filing of any document under the Exchange Act incorporated by reference therein), the Company will shall, at the Company’s expense, furnish to counsel to the holders of the Registrable Securities covered by Holders for such Registration Statement and the underwriters, if any, registration copies of all such documents proposed to be filed, which documents will be subject and give counsel to the Holders participating in such registration a reasonable opportunity to review of and comment on such holders documents and underwriters, and keep such Holders reasonably informed as to the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregistration process;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for until all of the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus disposed of and use its commercially reasonable efforts 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 applicable requirements of the Securities Act with respect to the disposition of all securities the Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof of such Registrable Securities set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterHolder participating in the registration, without charge, at least one signed copy such number of copies of the Registration Statement and any post-effective amendment thereto, including financial statements to such Registration Statement and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder such number of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus included in such Registration Statement (including each preliminary prospectusProspectus) and any amendment or supplement thereto (in each case including all exhibits thereto and all documents incorporated by reference therein) and such other documents in each case as such Persons Holder may reasonably request; , including in order to facilitate the disposition of the Registrable Securities owned by such Holder (it being understood that the Company consents to the use of the Prospectus or and any amendment or supplement thereto to the Prospectus by each of the selling holders of Registrable Securities Holders covered by the Registration Statement and the underwriter or underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment amendments or supplement theretosupplements to the Prospectus);
(hd) prior use its commercially reasonable efforts to any public offering of Registrable Securities, (i) register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or blue blue-sky laws of such jurisdictions U.S. jurisdiction(s) as any seller Holder participating in the registration or any managing underwriter reasonably requests in writing and (ii) do any and all other acts or and things that may be necessary or reasonably advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities Holder and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriterseach underwriter, if any, to consummate the disposition of such Holder’s Registrable SecuritiesSecurities in such jurisdiction(s); provided, that the Company shall not be required to qualify generally to do business, subject itself to taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for its obligations pursuant to this Section 10(d);
(ke) upon promptly notify each Holder participating in the occurrence registration and the managing underwriters of any event contemplated by paragraph Underwritten Offering:
(c)(6i) aboveeach time when the Registration Statement, prepare a any pre-effective amendment thereto, the Prospectus or any Prospectus supplement or posteffective any 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;
(ii) of any oral or written comments by the SEC or of any request by the SEC for amendments or supplements to the Registration Statement or the related Prospectus or for any document incorporated additional information regarding such Holder;
(iii) of 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 any such purpose; 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;
(f) notify each Holder participating in such registration, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or to omit any fact necessary to make the statements made therein by reference not misleading in light of the circumstances under which they were made, and, as promptly as practicable, prepare, file with the SEC and furnish to such Holder a reasonable number of copies of a supplement or file any other required document amendment to such Prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made;
(lg) promptly obtain the withdrawal or lifting of any stop order suspending the effectiveness of a Registration Statement, any order suspending or preventing the use of any related Prospectus or any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction;
(h) not 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, that refers to any Holder covered thereby by name or otherwise identifies such Holder as the holder of any securities of the Company without the consent of such Holder (such consent not to be unreasonably withheld or delayed), unless and to the extent such disclosure is required by Law;
(i) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar the Common Stock is then listed or, if the Common Stock is not then listed on any securities issued exchange, use its commercially reasonable efforts to cause such Registrable Securities to be listed on a national securities exchange selected by the Company are then listed if requested by after consultation with the holders of Holders participating in such registration;
(j) provide a majority of transfer agent and registrar (which may be the same entity) for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of any Holder participating in the holders of a majority of the Registrable Securitiesregistration, any underwriter participating in any disposition Underwritten Offering pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by the sellers any such Holder or underwriterunderwriter for such purpose, all corporate documents, financial and other records, pertinent corporate documents records relating to the Company and properties of the Company, its business reasonably requested by such Holder or underwriter and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeHolder, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationregistration or offering and make senior management of the Company and the Company’s independent accountants available for customary due diligence and drafting sessions; provided provided, that any recordsPerson gaining access to information or personnel of the Company pursuant to this Section 10(k) shall (i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business, and (ii) protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential and of which determination such Person is notified, unless such information (A) is or becomes known to the public without a breach of this Agreement, (B) is or becomes available to such Person on a non-confidential basis from a source other than the Company, (C) is independently developed by such Person, (D) is required by a deposition, interrogatory, request for information or documents that are designated by a Government Authority, subpoena or similar process or (E) is otherwise required to be disclosed by Law, in the case of clause (D) and (E), after giving the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderreasonable written notice and opportunity to object;
(pl) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holdersshareholders, as soon as reasonably practicable, an earnings statements satisfying statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act, no later than 45 days after Act and Rule 158 under the end Securities Act or any successor rule thereto) covering the period of any at least twelve (12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, months beginning with the first month (1st) day of the Company's ’s first full fiscal quarter commencing after the effective date of the applicable Registration Statement, which statements requirement shall cover said 12be deemed satisfied if the Company timely files complete and accurate information on Forms 10-month periodsK, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) in the case of an Underwritten Offering of Registrable Securities, promptly incorporate in a supplement to the Prospectus or a post-effective amendment to the Registration Statement such information as is reasonably requested by the managing underwriter(s) or any Holder participating in such Underwritten Offering to be included therein, the purchase price for the securities to be paid by the underwriters and any other applicable terms of such Underwritten Offering, and promptly make all required filings of such supplement or post-effective amendment;
(n) in the case of an Underwritten Offering of Registrable Securities, enter into such customary agreements (including underwriting and, subject to Section 8 hereof, lock-up agreements in customary form) and take all such other customary actions as any Holder participating in such offering or the managing underwriter(s) of such offering reasonably requests in order to expedite or facilitate the disposition of such Registrable Securities;
(i) furnish to each underwriter, if any, participating in an offering of Registrable Securities (A) all legal opinions of outside counsel to the Company required to be included in the Registration Statement and (B) a written legal opinion of outside counsel to the Company, dated the closing date of the offering, in form and substance as is customarily given in opinions of outside counsel to the Company to underwriters in underwritten registered offerings; and (ii) (A) obtain all consents of independent public accountants required to be included in the Registration Statement and (B) furnish on the date of the applicable Prospectus, on the effective date of any post-effective amendment to the Registration Statement and at the closing of the offering, dated the respective dates of delivery of each of the foregoing, a “comfort letter” signed by the Company’s independent public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(p) in the case of an underwritten offering of Registrable Securities, make senior management of the Company available, to the extent requested by the managing underwriter(s), to assist in the marketing of the Registrable Securities to be sold in such underwritten offering, including the participation of such members of senior management of the Company in “road show” presentations and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in such underwritten offering, and otherwise facilitate, cooperate with, and participate in such underwritten offering and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary underwritten registered offering of its Common Stock;
(q) cooperate with the Holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the Holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(r) not later than the effective date of such Registration Statement, provide a CUSIP number for all Registrable Securities covered thereby and provide the applicable transfer agent with printed certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System; and
(qs) promptly prior otherwise use its commercially reasonable efforts to take or cause to be taken all other actions necessary or reasonably advisable to effect the registration, marketing and sale of such Registrable Securities contemplated by this Agreement. Each Holder shall furnish to the filing of any document which is to be incorporated Company in writing such information regarding itself and the distribution proposed by reference into it as the Company may reasonably request for use in connection with a Registration Statement or Prospectus, and the Company shall not be obligated to effect any registration of such Holder’s Registrable Securities unless and until such Holder shall have furnished to the Company in writing such information. Each Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished to the Company by such Holder or of the occurrence of any event that would cause the Prospectus (after initial filing included in such Registration Statement to contain an untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or to omit 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 made therein not misleading in light of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities circumstances under which they were made and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company Company, as promptly as practicable, any additional information required to correct and update the information previously furnished by such information Holder such that such Prospectus shall not contain any untrue statement of a material fact regarding such Holder or the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition or omit to state a material fact regarding such Holder or the distribution of such Registrable Securities that, upon receipt of any notice from necessary to make the Company statements therein not misleading in light of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings circumstances under which are incorporated by reference in the Prospectus, 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 such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicethey were made.
Appears in 2 contracts
Sources: Shareholder Agreement (Riot Blockchain, Inc.), Stock Purchase Agreement (Riot Blockchain, Inc.)
Registration Procedures. In connection with the Company's obligations of CBC to effect or cause the registration obligations of any Registrable Securities pursuant to Section 3 hereofthe terms and conditions of this Agreement, the Company will CBC shall use its best reasonable efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possiblein connection therewith:
(a) CBC shall prepare and file with the SEC, as soon as practicable, Commission a Registration Statement on Form S-3 or Registration Statements on any appropriate other similar form under the Securities Act, Act which form shall be available for the sale permits secondary sales of the Registrable Securities securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, a "shelf registration," and use best reasonable efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, effective and remain effective in accordance with the Company will furnish to the holders provisions of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectthis Agreement;
(b) CBC shall promptly prepare and file with the SEC Commission such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep such Registration Statement effective and shall timely file with the Commission all required filings under the Exchange Act as are necessary to keep the Registration Statement effective for as long as such registration is required to remain effective pursuant to the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldterms hereof; shall cause the Prospectus to be supplemented by any required Prospectus supplement, and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and shall comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof Holder set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify CBC shall promptly furnish to Holder such number of copies of the selling holders Prospectus (including each preliminary Prospectus) and any amendments or supplements thereto, as Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities and the managing underwriters, if any, promptly, and being sold by Holder;
(if requested by any such Persond) confirm such advice in writingCBC shall promptly notify Holder, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, filed and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC Commission or any state securities authority for amendments or and supplements to the a Registration Statement or the and Prospectus or for additional informationinformation after the Registration Statement has become effective, (3iii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purposeStatement, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt issuance by the Company any state securities commission or other regulatory authority of any notification with respect to the suspension of order suspending the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction under state securities or the initiation or threatening of any proceeding for such purpose "blue sky" laws, and (6v) of the happening of any event which makes any statement made in the a Registration Statement, the Statement or related 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus that they will not contain an 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 therein, in light of the circumstances under which they were made, not misleading;
. As soon as practicable following expiration of the Suspension Period (l) cause all Registrable Securities covered by as defined below), CBC shall prepare and file with the Registration Statement Commission and furnish a supplement or amendment to be listed on each securities exchange on which similar securities issued by such Prospectus so that, as thereafter deliverable to the Company are then listed if requested by the holders of a majority purchasers of such Registrable Securities Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the managing underwritersstatements therein, if any;
(m) not later than the effective date in light of the Registration Statementcircumstances under which they were made, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Companymisleading. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon Upon receipt of any notice (a "Suspension Notice") by Holder from the Company CBC of the happening of any event of the kind described in Section 6(k) hereof3.3(d), such holder will Holder shall forthwith discontinue disposition of the Registrable Securities pursuant to the Resale Registration Statement covering such Registrable Securities until such holderSeller's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k3.3(d) hereof, or until it Holder is advised in writing (the "Advice") by the Company CBC 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 CompanyCBC, such holder will, or will request any broker-dealer acting as Holder's agent to, deliver to the Company CBC (at the Company's CBC expense) all copies, other than permanent file copies then in such holderSeller's or broker-dealer's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the ; PROVIDED, HOWEVER, that in no event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant on which Seller receives a Suspension Notice to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received on which Seller receives either the Advice or copies of the supplemented or amended prospectus Prospectus contemplated by Section 6(k3.3(d) hereof or (the Advice"Suspension Period") exceed 60 days.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Childrens Broadcasting Corp), Asset Purchase Agreement (Childrens Broadcasting Corp)
Registration Procedures. In connection with the Company's registration obligations filing of any Registration Statement pursuant to Section Sections 2 or 3 hereof, the Company will use its best efforts to Issuers shall (and shall cause each Guarantor to) effect such registration registrations to permit the sale of such Registrable Securities securities covered thereby in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company will as expeditiously as possible:Issuers hereunder, the Issuers shall (and shall cause each Guarantor to):
(a) prepare Prepare and file with the SEC, SEC as soon as practicablepracticable after the date hereof but in any event on or prior to the Filing Date, a the Exchange Offer Registration Statement or if the Exchange Offer Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale Statement is not filed because of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required circumstances contemplated by the SEC to be filed therewithSection 2(i), cooperate and assist in any filings required to be made with the NASDa Shelf Registration as prescribed by Section 3, and use their reasonable best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided that that, if (1) a Shelf Registration is filed pursuant to Section 3 or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto, before filing a any Registration Statement or Prospectus or any amendments or supplements theretothereto the Issuers shall (and shall cause each Guarantor to), the Company will if requested, furnish to and afford the holders Holders of the Registrable Securities covered by Notes to be registered pursuant to such Shelf Registration Statement and Statement, each Participating Broker-Dealer, the managing underwriters, if any, and each of their respective counsel, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least 3 Business Days prior to such filing). The Issuers and each Guarantor shall not file any such Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Holders must provide information for the inclusion therein without the Holders being afforded an opportunity to review such documentation if the holders of a majority in aggregate principal amount of the Registrable Notes covered by such Registration Statement, or any such Participating Broker-Dealer, as the case may be, the managing underwriters, if any, or any of their respective counsel shall reasonably object in writing on a timely basis. A Holder shall be deemed to have reasonably objected to such filing if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders contains an untrue statement of a majority material fact or omits to state any material fact necessary to make the statements therein not misleading or fails to comply with the applicable requirements of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;Act.
(b) prepare Provide an indenture trustee for the Registrable Notes, the Exchange Notes or the Private Exchange Notes, as the case may be, and cause the Indenture (or other indenture relating to the Registrable Notes) to be qualified under the TIA not later than the effective date of the first Registration Statement; and in connection therewith, to effect such changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use their reasonable best efforts to cause such trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments and post-effective amendments to each Shelf Registration or Exchange Offer Registration Statement, as the Registration Statement case may be, as may be necessary to keep the such Registration Statement continuously effective for the applicable period, Effectiveness Period or the Applicable Period or such shorter period which will terminate when all Registrable Securities covered as permitted by such Registration Statement have been soldthis Agreement, as the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act and the Exchange Act applicable to them with respect to the disposition of all securities covered by such Registration Statement during as so amended or in such Prospectus as so supplemented and with respect to the applicable period subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus.
(d) Furnish to such selling Holders and Participating Broker-Dealers who so request in accordance with writing (i) upon the intended method or methods Issuers’ receipt, a copy of distribution the order of the SEC declaring such Registration Statement and any post effective amendment thereto effective, (ii) such reasonable number of copies of such Registration Statement and of each amendment and supplement thereto (in each case including any documents incorporated therein by reference and all exhibits), (iii) such reasonable number of copies of the sellers thereof set forth Prospectus included in such Registration Statement or (including each preliminary Prospectus) and each amendment and supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders thereto, and such reasonable number of copies of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken final Prospectus as filed by the Company Issuers and each Guarantor pursuant to Rule 424(b) under the Securities Act, in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies conformity with the requirements of Section 6(k)the Securities Act and each amendment and supplement thereto, if applicable;
and (iv) such other documents (including any amendments required to be filed pursuant to clause (c) notify of this Section), as any such Person may reasonably request in writing. The Issuers and the Guarantors hereby consent to the use of the Prospectus by each of the selling holders Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be, and the underwriters or agents, if any, and dealers, if any, in connection with the offering and sale of the Registrable Notes covered by, or the sale by Participating Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any amendment or supplement thereto.
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities and Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto, the Issuers shall notify in writing the selling Holders of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, the managing underwriters, if any, promptly, and each of their respective counsel promptly (if requested by but in any such Personevent within 2 Business Days) confirm such advice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effectiveeffective (including in such notice a written statement that any Holder may, (2) upon request, obtain, without charge, one conformed copy of any request by the SEC for amendments or supplements to the such Registration Statement or the Prospectus post-effective amendment including financial statements and schedules, documents incorporated or for additional informationdeemed to be incorporated by reference and exhibits), (3ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of any Prospectus or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by the Company Issuers or any Guarantor of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities Notes or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose and purpose, (6iv) of the happening of any event which event, of the existence of any condition or of any information becoming known that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in the in, or amendments or supplements to, such Registration Statement, the Prospectus or documents so that, in the case of the Registration Statement and the Prospectus, it will not contain any document incorporated untrue statement of a material fact or omit to state any material fact required to be stated therein by reference in order or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;, (v) of any reasonable determination by the Issuers or any Guarantor that a post-effective amendment to a Registration Statement would be appropriate and (vi) of any request by the SEC for amendments to the Registration Statement or supplements to the Prospectus or for additional information relating thereto.
(df) make every Use their reasonable effort best efforts to obtain prevent the withdrawal issuance of any order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Notes or the Exchange Notes to be sold by any Participating Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued, to use their reasonable best efforts to obtain the withdrawal of any such order at the earliest possible moment;date.
(eg) if If (A) a Shelf Registration is filed pursuant to Section 3, (B) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period or (C) reasonably requested in writing by the managing underwriter underwriters, if any, or underwriters or the Holders of a holder majority in aggregate principal amount of the Registrable Securities Notes being sold in connection with an underwritten offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information or revisions to information therein relating to such underwriters or selling Holders as the managing underwriters and the holders underwriters, if any, or such Holders or any of a majority of the Registrable Securities being sold agree should their respective counsel reasonably request in writing to be included or made therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after the Issuers have received notification of the matters to be incorporated in such Prospectus supplement supplements or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable SecuritiesNotes or any delivery of a Prospectus contained in the Exchange Offer Registration Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, register or qualify or cooperate with the selling holders Holders of Registrable SecuritiesNotes or each such Participating Broker-Dealer, as the case may be, the managing underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities Notes or Exchange Notes, as the case may be, for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller selling Holder, Participating Broker-Dealer or any managing underwriter or underwriters, if any, reasonably requests request in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementwriting; provided that neither the Company will not Issuers nor any Guarantor shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or to qualified, (B) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject itself to taxation in any such jurisdiction where it is not then so subject;.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 is requested to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, cooperate with the selling holders Holders of Registrable Securities Notes and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities Notes to be sold and sold, which certificates shall not bearing bear any restrictive legends; legends and shall be in a form eligible for deposit with The Depository Trust Company, and enable such Registrable Securities Notes to be in such denominations and registered in such names as the managing underwriters underwriter or underwriters, if any, or Holders may request at least two business days prior to any sale of Registrable Securities to the underwriters;reasonably request.
(j) use its Use their reasonable best efforts to cause the Registrable Securities Notes covered by the applicable any 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 underwritersmanaging underwriter, if any, to consummate the disposition of such Registrable Securities;Notes, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Issuers shall (and shall cause each Guarantor to) cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals; provided that neither the Issuers nor any existing Guarantor shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any jurisdiction where it is not then so subject or (C) subject itself to taxation in any such jurisdiction where it is not then so subject.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, upon the occurrence of any event contemplated by paragraph (c)(6Section 5(e)(iv) aboveor 5(e)(v) hereof, as promptly as reasonably practicable, prepare and file with the SEC, at the expense of the Issuers and the Guarantors, a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesNotes being sold thereunder or to the purchasers of the Exchange Notes to whom such Prospectus will be delivered by a Participating Broker-Dealer, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;, and, if SEC review is required, use their reasonable best efforts to cause such post-effective amendment to be declared effective as soon as possible.
(l) cause all Registrable Securities covered by Prior to the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date initial issuance of the Registration StatementExchange Notes, provide a CUSIP number for all Registrable Securities and (i) provide the applicable trustee(s) Trustee with one or transfer agent(s) with printed more certificates for the Registrable Securities which are Notes in a form eligible for deposit with Depositary The Depository Trust Company;Company and (ii) provide a CUSIP number for the Exchange Notes.
(nm) If a Shelf Registration is filed pursuant to Section 3, enter into such agreements (including an underwriting agreementagreement in form, scope and substance as is customary in underwritten offerings of debt securities similar to the Notes, as may be appropriate in the circumstances) and take all such other actions in connection therewith (including those reasonably requested in writing by the managing underwriters, if any, or the Holders of a majority in aggregate principal amount of the Registrable Notes being sold) in order to expedite or facilitate the registration or the disposition of such Registrable Securities Notes, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Underwritten Registration, (1i) make such representations and warranties to the holders of such Registrable Securities Holders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders business of a majority any of the Registrable Securities being sold Issuers and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or their respective subsidiaries as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationthen conducted, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (TMX Finance LLC), Registration Rights Agreement (TitleMax of Virginia, Inc.)
Registration Procedures. In connection with Whenever the Company's registration obligations pursuant to Section 3 hereofSelling Stockholder shall have made a Notice of Demand or requested a Piggyback Registration, the Company will shall use its best all reasonable and diligent efforts to effect such the registration to permit the and sale of such Registrable Securities Shares in accordance with the intended method or methods of distribution thereofdisposition thereof and, and pursuant thereto thereto, the Company will shall as expeditiously as possible:
(a) and in any event within 30 calendar days of receipt of a Notice of Demand, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Shares and use its reasonable best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus Prospectus, or filing any amendments amendment thereof or supplements supplement thereto, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject filed to counsel for the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectSelling Stockholder;
(b) prepare and file with the SEC Commission such amendments pre- and post-effective amendments of and supplements to the such Registration Statement and the Prospectus(es) used in connection therewith as may be (i) reasonably requested by the Selling Stockholder or (ii) necessary to keep the such Registration Statement effective for the applicable periodRegistration Period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 applicable Securities Act Laws with respect to the sale or other disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement Selling Stockholder or any post-effective amendment, when counsel for the same has become effective, (2) Selling Stockholder such number of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) copies of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or Prospectus(es) included in such Registration Statement (including each preliminary Prospectus), any document incorporated therein by reference untrue or which requires other prospectus filed under Rule 424 promulgated under the making Securities Act relating to the Selling Stockholder’s Registrable Shares, any Issuer Free Writing Prospectuses, and each amendment of and supplement to any changes of the preceding, in conformity with the Registration Statementrequirements of the Securities Act, and such other documents as the Prospectus or any document incorporated therein by reference Selling Stockholder may reasonably request in order to make facilitate the statements therein not misleadingdisposition of the Registrable Shares under such Registration Statement;
(d) make every use its reasonable effort and diligent efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale Shares under the securities or blue sky laws of such jurisdictions as any seller or underwriter the Selling Stockholder reasonably requests and keep such registration or qualification in writing effect for so long as any Registration Statement remains in effect, and do any and all other acts or and things which may be reasonably necessary or advisable to enable the Selling Stockholder to consummate the disposition in such jurisdictions of the Registrable Securities covered by the Registration StatementShares; provided that the Company will shall not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph; (ii) subject itself to taxation in any such jurisdiction; or to take any action which would subject it (iii) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(ie) cooperate promptly notify the Selling Stockholder, at any time when a Prospectus relating thereto is required to be delivered under the applicable Securities Laws (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) and when any Issuer Free Writing Prospectus includes information that may conflict with the selling holders of Registrable Securities and information contained in the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with (including any document incorporated by reference therein that has not been superseded or approved by such other governmental agencies or authorities as may be necessary to enable modified), of the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence happening of any event contemplated by paragraph (c)(6) aboveas a result of which the Prospectus included in such 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 the Selling Stockholder, the Company shall promptly prepare a supplement or posteffective amendment and furnish to the Registration Statement Selling Stockholder a reasonable number of copies of an amendment of or the related supplement to such Prospectus or any document incorporated therein by reference or file any other required document an Issuer Free Writing Prospectus so that, as thereafter delivered to the purchasers of the Registrable SecuritiesShares, the such Prospectus will shall not contain an 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 therein, 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 Article IV, the Selling Stockholder shall be deemed to have agreed that the Selling Stockholder 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 Article IV and, if so directed by the Company, shall deliver to the Company all copies, other than permanent file copies, then in its possession of the Prospectus relating to such Registrable Shares current at the time of receipt of such notice;
(lf) cause all such Registrable Securities covered by the Registration Statement Shares to be listed 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 if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(mg) provide a transfer agent and registrar for all the Registrable Shares not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nh) enter into such customary agreements (including an underwriting agreementagreements) and take all such other customary actions in connection therewith as the Selling Stockholder or the underwriters, if any, and their counsel reasonably request in order to expedite or facilitate the disposition of such the Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Shares (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth effecting a stock split or a combination of shares) and, make reasonably available members of management of the Company, as selected by the Selling Stockholder, for assistance in the Purchase Agreement; (2) obtain opinions of counsel selling effort relating to the Company and updates thereof (which counsel and opinions (in formRegistrable Shares, scope and substance) shall be reasonably satisfactory to including, but not limited to, the managing underwriters, if any, and the holders participation of a majority such members of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered Company’s management in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters “road shows” scheduled in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver any such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderregistration;
(oi) make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesSelling Stockholder, any underwriter participating in any sale or other disposition pursuant to such registrationRegistration Statement, and any attorney legal counsel, accountant or accountant other agent retained by the sellers Selling Stockholder or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees, counsel and employees independent registered public accountants to supply all information reasonably requested by any the Selling Stockholder or such representativeseller, underwriter, attorney counsel, accountant or accountant agent in connection with such registrationRegistration 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; provided that and give the Selling Stockholder and its 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 Selling Stockholder and each underwriter, if any:
(i) when such Registration Statement or any recordsProspectus or Issuer Free Writing Prospectus used in connection therewith has been filed and, information with respect to such Registration Statement or documents that are designated 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 writing as confidential shall 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 withdrawal if such stop order should be kept confidential by issued; and (C) obtain the withdrawal of any such Persons unless disclosure suspension of such recordsqualification; and, information or documents is required by court or administrative orderin each case, keep the Selling Stockholder reasonably informed with respect thereto;
(pk) make all filings with, and obtain all consents of, state public utility commissions and similar regulatory bodies which may be reasonably necessary or advisable to enable the Selling Stockholder to consummate the disposition of the Registrable Shares;
(l) upon request, furnish to the Selling Stockholder a signed counterpart, addressed to the Selling Stockholder (and each underwriter, if any) of:
(i) an opinion or opinions 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 the Selling Stockholder (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; 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;
(m) otherwise use its best all reasonable and diligent efforts to comply with all applicable rules and regulations of the SEC, Securities Laws and make generally available to its security holders, earnings statements as soon as reasonably practicable an earning statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period Act and Rule 158 promulgated thereunder;
(or 90 days, if such period is a fiscal yearn) (1) 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 (2) if not sold to underwriters in such an offering, beginning cooperate with the first month Selling Stockholder and each underwriter or agent participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the Company's first fiscal quarter commencing after the effective date National Association of the Registration StatementSecurities Dealers, which statements shall cover said 12-month periodsInc.; and
(qo) promptly and in any event prior (and, if practicable, at least 48 hours prior) to the filing of any document which is to be incorporated by reference into Registration Statement, the Registration Statement filing of any Prospectus or Issuer Free Writing Prospectus or the Prospectus (after initial filing of the any amendment of or supplement to such Registration Statement), provide copies Prospectus or Issuer Free Writing Prospectus, furnish a copy thereof to the Selling Stockholder and its legal counsel and refrain from filing any such Registration Statement, Prospectus, Issuer Free Writing Prospectus or amendment thereof or supplement thereto to which such counsel shall have reasonably objected on the grounds that such document does not comply in all material respects with the requirements of the Securities Act or the rules and regulations thereunder, unless, in the case of an amendment or supplement, in the opinion of counsel for the Company the filing of such document amendment or supplement is reasonably necessary to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to protect the Company from any liabilities under any applicable federal or state law and such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder filing will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicenot violate applicable laws.
Appears in 2 contracts
Sources: Registration Rights Agreement (American Water Works Company, Inc.), Registration Rights Agreement (American Water Capital Corp.)
Registration Procedures. In connection At such time as the Company is obligated to file a Registration Statement with the Company's registration obligations Commission pursuant to Section 3 hereof2, the Company will use its reasonable best efforts to effect such the registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution disposition thereof and shall include all financial statements required by the SEC to be filed therewithand, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements pursuant thereto, the Company will furnish shall have the following obligations:
a. The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times from its effective time until the holders earlier of (i) the date as of which the Common Stock covered by such Registration Statement cease to be Registrable Securities or (ii) the date on which each Purchaser shall have sold all of the Registrable Securities covered by such Registration Statement (the “Registration Period”). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and the underwriters, if any, copies Prospectuses contained therein) shall not contain any untrue statement of all such documents proposed a material fact or omit to state a material fact required to be filedstated therein, which documents will be subject or necessary to make the reasonable review statements therein (in the case of such holders and underwritersProspectuses, and in the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority light of the Registrable Securities covered by such Registration Statement or the underwriters, if any, circumstances in which they were made) not misleading.
b. The Company shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the a Registration Statement as may be necessary to keep and the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by Prospectus used in connection with such Registration Statement have been sold; cause the Statement, which Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented is to be filed pursuant to Rule 424 promulgated under the Securities Act; and , as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities of the Company covered by such Registration Statement during the applicable period until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-Q, Form 10-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
c. The Purchasers shall have the right to select one legal counsel to review and oversee any registration pursuant to this Agreement (“Legal Counsel”), as designated by the Required Holders. The Company and Legal Counsel shall reasonably cooperate with each other in performing the Company’s obligations under this Agreement. The Company shall (A) permit Legal Counsel to review and comment upon (i) a Registration Statement at least five (5) Business Days prior to its filing with the Commission and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, and Reports on Form 10-Q and any similar or successor reports) within a reasonable number of days prior to their filing with the Commission, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the Commission or the staff of the Commission to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the Commission, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by the Purchasers, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the Prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel in performing the Company’s obligations pursuant to this Section 3.
d. The Company shall furnish to the Purchasers, without charge, (i) promptly after the same is prepared and filed with the Commission, at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by the Purchasers, all exhibits and each preliminary Prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the Prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as the Purchasers may reasonably request) and (iii) such other documents, including copies of any preliminary or final Prospectus, as the Purchasers may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by the Purchasers.
e. The Company shall (i) register and qualify, unless an exemption from registration and qualification applies, the resale by Purchasers of the Registrable Securities covered by a Registration Statement under such other securities or “blue sky” laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be deemed required in connection therewith or as a condition thereto to have used its best efforts (x) qualify to keep a Registration Statement effective during the applicable period if do business in any jurisdiction where it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able otherwise be required to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and qualify but for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of this Section 6(k3(e), if applicable;
(cy) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by subject itself to general taxation in any such Personjurisdiction, or (z) confirm file a general consent to service of process in any such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations jurisdiction. The Company shall promptly notify Legal Counsel and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) Purchasers of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.
f. The Company shall notify Legal Counsel and Purchasers in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a 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 (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 3(l), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to Legal Counsel and Purchasers (or such other number of copies as Legal Counsel or Purchasers may reasonably request). The Company shall also promptly notify Legal Counsel and Purchasers in writing (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and Purchasers by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related Prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. The Company shall use commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify Legal Counsel and Purchasers of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threatening threat of any proceeding for such purpose purpose.
h. The Company shall hold in confidence and not make any disclosure of information concerning the Purchasers provided to the Company unless (6i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the happening disclosure of such information is necessary to avoid or correct a misstatement or omission in any event which makes any statement made in the Registration Statement, (iii) the Prospectus release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any document incorporated therein other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Purchaser is sought in or by reference untrue a court or which requires governmental body of competent jurisdiction or through other means, give prompt written notice to the making of any changes in Purchaser and allow such Purchaser, at the Registration StatementPurchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
i. If requested by a Purchaser, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
Company shall (di) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should Purchaser reasonably requests to be included therein relating to the plan sale and distribution of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered or sold, the purchase price being paid therefor by such 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 (ii) as soon as practicable make all required filings of such Prospectus supplement or post-effective amendment as soon as after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Purchaser holding any Registrable Securities.
(f) furnish j. Notwithstanding anything to each selling holder of Registrable Securities and each managing underwriter, without chargethe contrary herein, at least one signed copy any time after the Effective Date, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the 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 each selling holder Board of Registrable Securities and the underwriters, if any, without charge, as many copies Directors of the Prospectus (including each preliminary prospectus) Company and any amendment or supplement thereto as such Persons may reasonably request; its counsel, in the best interest of the Company consents and, in the opinion of counsel to the use Company, otherwise required (a “Grace Period”); provided, that the Company shall promptly (i) notify the Purchasers in writing of the Prospectus or any amendment or supplement thereto by each existence of the selling holders of Registrable Securities and the underwritersmaterial, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
non-public information giving rise to a Grace Period (h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that in each notice the Company will not disclose the content of such material, non-public information to the Purchasers) and the date on which the Grace Period will begin, and (ii) notify the Purchasers in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed sixty (60) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of one hundred twenty (120) days and the first day of any Grace Period must be required at least two (2) trading days after the last day of any prior Grace Period. For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Purchasers receive the notice referred 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;
clause (i) cooperate with and shall end on and include the selling holders later of Registrable Securities the date the Purchasers receive the notice referred to in clause (ii) and the managing underwriters, if any, date referred 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 notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of a Purchaser in such names as the managing underwriters may request at least two business days prior to connection with any sale of Registrable Securities with respect to which such Purchaser has entered into a contract for sale, and delivered a copy of the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by Prospectus included as part of the applicable Registration Statement to be registered with or approved by (unless an exemption from such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwritersprospectus delivery requirements exists), if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's Purchaser’s receipt of the copies notice of a Grace Period and for which the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and Purchaser 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicenot yet settled.
Appears in 2 contracts
Sources: Investor Rights Agreement (Giga Tronics Inc), Securities Purchase Agreement (Giga Tronics Inc)
Registration Procedures. In connection with the Company's registration obligations Whenever an Investor requests that any Registrable Securities be offered or registered pursuant to Section 3 hereof2.01 or 2.03, subject to the provisions of such Sections, the Company will shall use its reasonable best efforts to effect such registration to Registration and permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will disposition thereof as expeditiously as possiblereasonably practical, and, in connection with any such request:
(a) The Company shall as expeditiously as reasonably practical prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate form under the Securities Act, and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use all reasonable best efforts to cause such filed Registration Statement to become effective; provided that before and remain effective for a period of not less than 180 days (or such shorter period in which all of the Registrable Securities of the Investors and Management Investors included in such Registration Statement shall have actually been sold thereunder). For the avoidance of doubt, the Company shall be permitted to effect the Registration of any Registrable Securities by filing a post-effective amendment or prospectus supplement to any then-effective Registration Statement of the Company, including the Existing Shelf Registration Statement as contemplated by Section 2.01(a) or the Registration Statement to be filed as contemplated by Section 2.01(b).
(b) Prior to filing a Registration Statement or Prospectus prospectus or any amendments amendment or supplements theretosupplement thereto relating to a Registration under Section 2.01 or a Primary Offering under Section 2.03 (other than any report filed pursuant to the Exchange Act that is incorporated by reference therein), the Company will shall, if practical, furnish to the holders each participating Investor, each participating Management Investor and each underwriter, if any, of the Registrable Securities covered by such Registration Statement copies of such Registration Statement as proposed to be filed, and thereafter the Company shall furnish to such Investor(s) and underwriters, if any, such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424, Rule 430A, Rule 430B or amendment thereto Rule 430C under the Securities Act and such other documents as such Investor(s) or any Prospectus or any supplement thereto underwriters may reasonably request in order to which facilitate the holders of a majority disposition of the Registrable Securities covered owned by such Registration Statement or the underwriters, if any, shall reasonably object;Investor(s) and Management Investor(s).
(bc) prepare and file with After the SEC such amendments and post-effective amendments to filing of the Registration Statement as may be necessary to keep Statement, the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; Company shall (i) cause the Prospectus related prospectus to be supplemented by any required Prospectus supplementprospectus supplement (including by virtue of paragraph (d) below), and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and , except when a Postponement Event is in effect, (ii) comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers Investors thereof set forth in such Registration Statement or prospectus supplement and (iii) promptly notify each Investor holding Registrable Securities covered by such Registration Statement of any stop order issued or threatened by the SEC or any state securities commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered (and promptly notify each such Investor of the withdrawal or removal of such stop order).
(d) The Company shall promptly notify each Investor and Management Investor holding 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, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the Prospectus; purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, except when a Postponement Event is in effect, promptly prepare and make available to each such Investor and Management Investor and file with the SEC any such supplement or amendment within the timeframe required by the SEC.
(e) In the case of any Underwritten Offering hereunder, the Company shall not select the underwriter or underwriters in connection therewith (who shall be deemed reasonably acceptable to have used its best efforts to keep holders of a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders majority of the Registrable Securities covered thereby not being able participating in the Underwritten Offering) and determine their respective roles within the syndicate, and shall enter into customary agreements (including an underwriting agreement in customary form) and take all such other actions as are reasonably required in order to sell expedite or facilitate the disposition of such Registrable Securities during that period unless in any such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasonsUnderwritten Offering, including without limitation if necessary the acquisition or divestiture engagement of assets, so long as the Company promptly thereafter complies a “qualified independent underwriter” in connection with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale underwriting arrangements with FINRA. Notwithstanding the foregoing, in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration StatementBlock Trade, 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 in order as opposed to make the statements therein 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 moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an “marketed underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and ,” the holders of a majority of the Registrable Securities being sold agree should be included participating therein relating shall select the underwriter(s) for such Block Trade from a group of up to the plan of distribution with respect five underwriters for such Block Trade that are acceptable to such Registrable Securities, including, without limitation, information with respect to holders and the number Company (each acting reasonably and promptly following its receipt of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms notice of the underwritten (or best efforts 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;a Registration Request for a Block Trade).
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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) The Company shall deliver to each selling holder of Registrable Securities participating Investor, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus prospectus or prospectuses (including each preliminary form of prospectus) and any each amendment or supplement thereto as such Persons may reasonably requestrequest from time to time in connection with the distribution of the Registrable Securities; provided that the Company may furnish or make available any such document in electronic format (other than, in the case of an Underwritten Offering, upon the request of the managing underwriters thereof for printed copies of any such prospectus or prospectuses); and the Company, hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities participating Investor and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any such amendment or supplement thereto;.
(g) In the case of any Underwritten Offering hereunder, upon execution of confidentiality agreements in form and substance reasonably satisfactory to the Company, the Company shall make available for inspection by any Investor, any Management Investor and any underwriter participating in any disposition pursuant to a Registration Statement being filed by the Company pursuant to this Section 2.06 and any attorney, accountant or other professional advisor retained by any such Investor 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 or desirable to enable them to exercise their customary due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such Registration Statement. Records that the Company determines, in good faith, to be attorney-client privileged or confidential and that it notifies the Inspectors are attorney-client privileged or confidential shall not be disclosed by the Inspectors unless with respect to the confidential Records (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission 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 otherwise required under applicable law or otherwise in accordance with Section 4.03 of the Investor Rights Agreement. Each Investor and Management Investor agrees that 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 Registrable Securities unless and until such information is made generally available to the public. Each Investor and Management Investor further agrees that, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, it shall (to the extent legally permissible) give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(h) prior In the case of any Underwritten Offering hereunder, the Company shall use reasonable best efforts to furnish to each Registering Investor and to each underwriter a signed counterpart, addressed to such Registering Investor or underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the kind customarily covered by opinions or comfort letters, as the case may be, as a majority of such Investors or the managing underwriter therefor reasonably requests.
(i) If requested by the managing underwriters, if any, or the holders of a majority of the then-issued and outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a prospectus supplement or post-effective amendment to the applicable Registration Statement such information as the managing underwriters, if any, and such holders 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 such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any action under this paragraph (i) that is not, in the opinion of counsel for the Company, in compliance with applicable law.
(j) The Company shall otherwise use its reasonable best 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 or such other document covering a period of 12 months, beginning within three months after the effective date of the Registration Statement, which earnings statement satisfies the requirements of Rule 158 under the Securities Act.
(k) The Company may require each Investor and Management Investor promptly to furnish in writing to the Company such information regarding the intended method of distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information regarding such Investor or Management Investor as may be legally required in connection with such Registration.
(l) The Company shall use its reasonable best efforts to list all Registrable Securities covered by such Registration Statement on any securities exchange or quotation system on which the Ordinary Shares are then listed or traded.
(m) In the case of any Underwritten Offering hereunder, the Company shall have appropriate officers of the Company (i) except in connection with a Block Trade, prepare and make presentations at any “road shows” and before analysts and (ii) otherwise use their reasonable efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or selling of the Registrable Securities.
(n) Prior to any public offering of Registrable Securities, the Company shall register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky sky” laws of such jurisdictions within the United States as any seller Investor or underwriter reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any and all other acts or things action that may be necessary or advisable to enable such Investors to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdiction; provided provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this Agreement or to (ii) take any action which that would subject it to taxation or general service of process in any such jurisdiction where it is would not then so subject;otherwise be subject but for this Agreement.
(io) cooperate with the selling holders of The Company shall 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.
(p) The Company shall cooperate with, and direct the Company’s transfer agent to cooperate with, such Registering Investors and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legend) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold and not bearing any restrictive legends; and enable after receiving written representations from 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;
(j) use its best efforts to cause Registering Investors that the Registrable Securities covered represented by the applicable Registration Statement to be registered with or approved certificates so delivered by such other governmental agencies or authorities as may Registering Investor will be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to transferred in accordance with the Registration Statement or and, in connection therewith, if reasonably required by the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;Company’s transfer agent.
(lq) cause all Registrable Securities covered by the Registration Statement Prior to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration StatementStatement relating to the Registrable Securities, provide the Company will obtain a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (CLARIVATE PLC), Registration Rights Agreement (CLARIVATE PLC)
Registration Procedures. In connection Whenever the Stockholder has made a Request in accordance with the Company's registration obligations Section 5.1 that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts shall as expeditiously as reasonably practicable:
(a) (i) no later than fifteen (15) days, in connection with a Demand Registration, or five (5) Business Days, in connection with a Takedown Request (or two (2) Business Days if the offering requested in the Takedown Request is to effect such be conducted as an underwritten unmarketed block trade), after the receipt by the Company of the applicable Request but subject to the Blackout Periods set forth in Section 5.2, the Company shall prepare and file with the SEC a Required Registration Statement or Takedown Prospectus Supplement, as the case may be, providing for the registration to permit under the sale Securities Act or the offering of such the Registrable Securities which the Stockholder has specified in the applicable Request and in accordance with the intended method or methods of distribution thereofthereof specified in such Request. The Company shall use reasonable best efforts (A) to have such Required Registration Statement, and pursuant thereto in connection with a Demand Registration, declared effective by the Company will as expeditiously as possible:
(a) prepare and file with the SEC, SEC as soon as practicablepracticable thereafter and subject to the Blackout Periods set forth in Section 5.2, to keep such Required Registration Statement continuously effective for a period of at least ninety (90) days (or, in the case of an underwritten offering, such period as the underwriters may reasonably require) following the date on which such Required Registration Statement is declared effective (or such shorter period which shall terminate when all of the Registrable Securities covered by such Required Registration Statement have been sold pursuant thereto), including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or Required Shelf Registration Statements on Statement or the related prospectus or any appropriate document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement or Required Shelf Registration Statement, if required by the rules, regulations or instructions applicable to the registration form under used by the Company for such Required Registration Statement or Required Shelf Registration Statement or by the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method Exchange Act, any state securities or methods of distribution thereof blue sky Laws, or any rules and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDregulations thereunder, and use best efforts (B) to cause such keep the Shelf Registration Statement related to become effective; provided that the Takedown Prospectus Supplement in connection with a Takedown Request continuously effective pursuant to Section 5.3, and (ii) before filing a such Required Registration Statement or Takedown Prospectus Supplement, as the case may be, or any amendments or supplements thereto, the Company will furnish or before using any Issuer Free Writing Prospectus related to the holders offer and sale of Registrable Securities, provide to the Registrable Securities covered by such Registration Statement Stockholder and the underwriters, if anyany managing underwriter(s) and their respective counsel, copies of all such documents proposed to be filedfiled or furnished or used, which including documents incorporated by reference (but excluding the portions of such documents that are or will be subject to a request for confidential treatment), and the Stockholder and the managing underwriter(s) and their respective counsel shall have the reasonable opportunity to review of such holders and underwriterscomment thereon, and the Company will make such changes and additions thereto as may reasonably be requested by the Stockholder and the managing underwriter(s) and their respective counsel prior to such filing or use, unless the Company reasonably objects to such changes or additions; provided, however, that the Company shall not file any Registration Statement amendment or amendment thereto supplement or any Issuer Free Writing Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement Stockholder or the underwriters, if anyunderwriters or their respective counsel, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to such Registration Statement and the prospectus used in connection therewith and the Takedown Prospectus Supplement, if applicable, and any Issuer Free Writing Prospectus related to the offer and sale of Registrable Securities (subject to the review and comment provisions set forth in Section 5.7(a) and Section 5.2 above) and perform such other actions (including those described in Section 5.3 with respect to an Automatic Registration Statement Statement) as may be necessary to keep maintain the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by effectiveness of such Registration Statement have been sold; cause the Prospectus and 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 with respect to the disposition of all securities covered by such Registration Statement during and such Takedown Prospectus Supplement for the applicable period in accordance with the intended method or methods of distribution by the sellers thereof periods set forth herein;
(c) furnish to the Stockholder and each managing underwriter or other purchaser and their respective counsel such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement or supplement (including each preliminary prospectus) and the Takedown Prospectus Supplement, if applicable, (in each case including all exhibits other than those which are being incorporated into such Registration Statement by reference and that are publicly available), any Issuer Free Writing Prospectus related to the Prospectusoffer and sale of Registrable Securities and such other documents as the Stockholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Stockholder;
(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky Laws of such jurisdictions in the United States as the Stockholder or any managing underwriter or other purchaser may reasonably requests, and to continue such registration or qualification in effect in such jurisdiction and to maintain any such approval for as long as permissible pursuant to the laws of such jurisdiction and the regulations of the Governmental Authority, or for as long as any such seller requests or until all of such Registrable Securities are sold, whichever is shortest, and do any and all other acts and things which may be reasonably necessary or advisable to enable the Stockholder to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Stockholder; provided that the Company shall not be deemed required to have used its (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction where it is not so subject;
(e) in the event of any offering of Registrable Securities pursuant to a Registration Statement, (i) enter into an underwriting agreement or similar agreement, in usual and customary form, with the managing underwriter(s) or other purchaser(s) of Registrable Securities in such offering and use reasonable best efforts to keep take such other actions as the Stockholder, managing underwriter(s) or other purchaser(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, (ii) cause its senior officers to participate in “road shows” and investor presentations and other information meetings organized by the managing underwriter(s) or other purchaser(s) and otherwise reasonably cooperate with the managing underwriter(s) or other purchaser(s) in connection with customary marketing activities (provided however, in no circumstance shall the Company be required to participate in road shows or other information meetings in connection with more than three (3) such offerings in any twelve (12)-month period) and (iii) cause to be delivered to the Stockholder and the underwriter(s) or other purchaser(s) opinions of counsel to the Company addressed to the underwriter(s) or other purchaser(s), in customary form, covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriter(s) or other purchaser(s) may request;
(f) notify the Stockholder and each managing underwriter or other purchaser and their respective counsel, at any time when a prospectus relating thereto (including a Takedown Prospectus Supplement) is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement, as then in effect, the Takedown Prospectus Supplement, any Issuer Free Writing Prospectus related to the offer and sale of Registrable Securities, or any document incorporated therein by reference contains an untrue statement of a material fact or omits any fact necessary to make the statements therein, not misleading, and in such case, subject to Section 5.2, the Company shall promptly prepare a supplement or amendment to such prospectus, Takedown Prospectus Supplement, Issuer Free Writing Prospectus or document so that, as thereafter delivered to the holders of such Registrable Securities, such prospectus, Takedown Prospectus Supplement, Issuer Free Writing Prospectus or document shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, not misleading;
(g) use its reasonable best efforts to cause all such Registrable Securities which are registered to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(h) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement not later than the effective date of such Registration Statement and, unless such shares are in book-entry form only, facilitate the timely preparation of certificates representing the Registrable Securities to be sold and not bearing any restrictive legends, in such denominations and registered in such names as the selling holders shall request prior to the closing of the offering;
(i) enter into such customary agreements and use reasonable best efforts to take all such other actions as the Stockholder and the underwriter(s) or other purchaser(s), if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(j) make available for inspection by the Stockholder and any underwriter or other purchaser participating in any disposition pursuant to a Registration Statement effective during and any attorney, accountant or other agent retained by the applicable period Stockholder (including the attorney appointed by the Company) or any underwriter or other purchaser, financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors, employees and independent accountants to supply all other information reasonably requested by the Stockholder or any such underwriter or other purchaser, attorney, accountant or agent in connection with such Registration Statement;
(k) if it voluntarily takes any action that would result in selling holders such offering of Registrable Securities is made pursuant to a Registration Statement, use reasonable best efforts to obtain “comfort” letters dated the pricing date and the closing date of the offering of the Registrable Securities under the underwriting or other agreement from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered thereby by “comfort” letters in connection with underwritten offerings as the Stockholder, managing underwriter(s) or other purchaser(s) reasonably request;
(l) use reasonable best efforts to furnish, , at the request of the Stockholder on the date such securities are delivered to the underwriter(s) or other purchaser(s) for sale pursuant to such registration or are otherwise sold pursuant thereto, an opinion and a “10b5” letter, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriter(s) or other purchaser(s) covering such legal and other matters with respect to the registration in respect of which such opinion is being given and such letter is being delivered as the Stockholder, underwriter(s) or other purchaser(s) may reasonably request and are customarily included in such opinions and letters;
(m) subject to Section 5.2, use reasonable best efforts to prevent the issuance of any stop order, injunction or other order or requirement suspending the effectiveness of the Registration Statement or obtain the withdrawal of any such order if it is issued;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable after the effective date of the Registration Statement, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(o) to the extent permitted by applicable Law, make available to the Stockholder an executed copy of each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and any item of correspondence received from the SEC or the staff of the SEC (or other governmental agency or self–regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement; respond reasonably and completely to any and all comments received from the SEC or the staff of the SEC, with a view towards causing such Registration Statement or any amendment thereto to be declared effective by the SEC as soon as reasonably practicable and shall file an acceleration request following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such registration statement or any amendment thereto will not being able be subject to sell review;
(p) reasonably cooperate with the Stockholder and each underwriter or other purchaser participating in the disposition of such Registrable Securities during that period unless such action is and their respective counsel in connection with any filings required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies be made with the requirements of Section 6(k), if applicableFINRA;
(cq) notify in writing the selling holders of Registrable Securities Stockholder and the managing underwritersunderwriter or other purchaser, if any, promptly, and their respective counsel of the following events as promptly as reasonably practicable:
(if requested by i) the filing of and effectiveness of any such Person) confirm such advice in writing, (1) when Registration Statement and the filing of any Issuer Free Writing Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect related to the Registration Statement offer or any post-effective amendment, when the same has become effective, sale of Registrable Securities;
(2ii) of any request by the SEC for amendments or supplements to the Registration Statement Statement, the prospectus, the Takedown Prospectus Supplement, or any Issuer Free Writing Prospectus related to the Prospectus offer or sale of Registrable Securities or for additional information, information and when same has been filed and become effective;
(3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ;
(4iv) if at any time the representations and warranties suspension of the Company contemplated by paragraph registration of the subject shares of the Registrable Securities in any state jurisdiction; and
(ov) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws Laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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 the initiation or threat of any action which would subject it to general service of process in any proceeding for such jurisdiction where it is not then so subjectpurpose;
(ir) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered extent requested in writing by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the lead managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(sunderwriter(s) or transfer agent(sother purchaser(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders an underwritten offering of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Equity Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Companyagree, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by officers of the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such recordsto agree, information to enter into customary agreements restricting the sale or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Equity Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including commencing on the date of the giving request (which shall be no earlier than fourteen (14) days prior to the expected “pricing” of such notice offering) and continuing for not more than ninety (90) days after the date of the “final” prospectus (or “final” prospectus supplement if the offering is made pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such a Shelf Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.Statem
Appears in 2 contracts
Sources: Stockholders Agreement (Colfax CORP), Stockholders Agreement (Circor International Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the (a) The Company will shall use its best all reasonable efforts to effect such registration to permit the sale of such the Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will shall as expeditiously as possiblepracticable:
(ai) prepare and file with the SEC, as soon as practicable, a the Registration Statement or Registration Statements on any an appropriate form under the Securities Actregistration form, which Registration Statement shall comply as to form shall be available for in all material respects with the sale requirements of the Registrable Securities in accordance with the intended method applicable form and include or methods of distribution thereof and shall include incorporate by reference all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDtherewith or incorporated by reference therein, and in either case use best all reasonable efforts to cause such the Registration Statement to become effective and remain effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(bii) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will shall terminate when all Registrable Securities covered by such the Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 promulgated under the Securities Act; Act and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such the Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof Selling Shareholders set forth in such the Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(ciii) notify the selling holders of Registrable Securities Selling Shareholders and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice in writingwriting promptly, (1) when the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, (2) of any comments of the SEC or any state securities authority with regard to the Registration Statement and of any request by the SEC or any state securities authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission SEC or any state securities authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 purpose, (5) in the case of any shelf Registration Statement, if between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company contained in any underwriting agreement, securities sale agreement or other similar agreement, relating to the offering cease to be true and correct in all material respects and (6) of the happening of any event which or the discovery of any facts that makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue in any material respect or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein 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 moment;
(eiv) if requested by the managing underwriter or underwriters or a holder of Selling Shareholder whose Registrable Securities are being sold offered for sale in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders holder of a majority of the Registrable Securities being sold agree offered for sale consider should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered for sale, the purchase price being paid therefor by such 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 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;
(fv) if requested by any Selling Shareholder, furnish to each selling holder of Registrable Securities and each managing underwriterSelling Shareholder, without charge, at least one signed copy of the Registration Statement and Statement, any amendment (including any post-effective amendment amendment) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gvi) deliver to each selling holder of Registrable Securities Selling Shareholder and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hvii) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable SecuritiesSelling Shareholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such the Registrable Securities for offer and sale under the state securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided provided, however, that the Company will shall 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(qviii) promptly prior otherwise reasonably cooperate with the Selling Shareholders to carry out the filing intent of any document which is to be incorporated by reference into the Registration Statement or the Prospectus this Agreement.
(after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. c) The Company may require each seller of Registrable Securities as to which any registration is being effected Selling Shareholders to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. ; provided, however, that such information shall be used by the Company only to the extent necessary for and in connection with, such registration.
(d) Each holder of Registrable Securities Selling Shareholder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening imposition of any event order suspending the effectiveness of the kind described in Section 6(k) hereof, a Registration Statement such holder will Selling Shareholder shall forthwith discontinue disposition of such Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it Selling Shareholder is advised in writing (the "“Advice"”) 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 shall deliver to the Company (at the Company's ’s expense) all copies, other than permanent file copies then in such holder's ’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 regarding the maintenance of such the Registration Statement in Section 3 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof stop order to 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(k) hereof or the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Igate Corp), Registration Rights Agreement (Igate Corp)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act pursuant to Section 3 hereofthe provisions of this Agreement, the Company will shall use its reasonable best efforts to effect such registration to permit the Registration of the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall, as expeditiously as possibleapplicable:
(a) prepare and file with the SEC, SEC as soon as practicable, is reasonably practicable a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the be declared effective and remain effective until all Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objecthave been sold;
(b) prepare and file with the SEC such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when until all Registrable Securities covered by such Registration Statement have been sold; cause are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus and 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period Registrable Securities in accordance with the intended method or methods of distribution by the sellers thereof disposition set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(c) notify prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the selling holders of Registrable Securities included in such Registration (or counsel designated by the majority-in-interest of the participating holders) copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the underwriters and the managing underwriters, if any, promptly, and (if requested by any holders of Registrable Securities included in such Person) confirm such advice Registration may reasonably request in writing, (1) when order to facilitate the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale in any jurisdiction owned by such holders. It is understood that the foregoing documents will be subject to the review of such holder or such counsel (it being acknowledged and agreed that if a holder does not object to or comment on the initiation or threatening aforementioned documents within such two Business Days then the holder shall be deemed to have consented to and approved the use of any proceeding for such purpose and (6) 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 in order to make the statements therein not misleadingdocuments);
(d) make every reasonable effort to obtain notify each selling holder of Registrable Securities, promptly after the withdrawal of any order suspending the effectiveness Company receives notice thereof, of the time when such Registration Statement at has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed with the earliest possible momentSEC;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy such number of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus included in such Registration Statement (including each preliminary prospectusProspectus) and any amendment or supplement thereto (in each case including all exhibits and documents incorporated by reference therein), and such other documents as such Persons seller may reasonably request; request in order to facilitate 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 connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(hf) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or “blue sky sky” laws of such jurisdictions as any seller or underwriter selling holder reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch holders; provided provided, that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified business, subject itself to general taxation or to take any action which would subject it consent to general service of process in any such jurisdiction where it is would not then otherwise be required to do so subjectbut for this Section 4(f);
(ig) cooperate with the notify each selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition holder of such Registrable Securities;
(k) upon , at any time when a Prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph (c)(6) abovethat would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the Company shall prepare a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(oh) make available for inspection by a representative any selling holder of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by the sellers any such holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant Inspector in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderRegistration Statement;
(pi) otherwise use its best efforts to comply with provide a transfer agent and registrar (which may be the same entity) for all applicable rules such Registrable Securities and regulations of the SECprovide a CUSIP number for all such Registrable Securities, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no in each case not later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 such Registration;
(j) cause such Registrable Securities to be listed on each securities exchange or automated quotation system on which the Common Stock is then listed;
(k) in connection with an underwritten offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(l) notify the holders of Registrable Securities promptly of any request by the SEC for the amending or supplementing of such Registration StatementStatement or Prospectus or for additional information;
(m) advise the holders of Registrable Securities, which statements promptly after it shall cover said 12-month periodsreceive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable 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
(qn) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)otherwise, provide copies of in good faith, cooperate reasonably with, and take such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof customary actions as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") be requested by the Company that the use of the Prospectus may be resumedholders, 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, connection with 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 such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceRegistration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Female Health Co), Merger Agreement (Female Health Co)
Registration Procedures. In connection with Whenever the Company's registration obligations Offerors have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleexpeditiously:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement to become effectiveand remain effective for a period of not less than three months; provided provided, that before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will furnish to the holders of counsel selected by the Registrable Securities covered by Offerors requesting such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriterscounsel before such filing is made, and the Company will not file comply with any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered reasonable request made by such Registration Statement counsel to make changes to the extent such documents do not comply in all material respects with the Securities Act or the underwriters, if any, shall reasonably objectsecurities laws of any other applicable jurisdiction;
(b) prepare and file with the SEC such amendments (including post effective amendments) and post-effective amendments supplements to such Registration Statement and the prospectus used in connection therewith, which documents will be subject to the Registration Statement review of such counsel before such filing is made, and the Company will comply with any reasonable request made by such counsel to make changes to the extent such documents do not comply in all material respects with the Securities Act or the securities laws of any other applicable jurisdiction, as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter a period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus of not less than three (3) months and 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 and the securities laws of any other applicable jurisdiction with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(c) notify the furnish to each Holder selling holders of Registrable Securities such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits), the managing underwritersprospectus included in such Registration Statement (including each preliminary prospectus) and such other customary documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable each Holder selling Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, if any, promptly, and (if requested by ii) subject itself to taxation in any such Personjurisdiction, or (iii) confirm consent to service of process except as required by the securities or blue sky laws in any such advice jurisdiction);
(e) use its reasonable best efforts to cause the Registrable Securities covered by such Registration Statement to be registered with, or approved by, such other public, governmental or regulatory authorities as may be necessary to facilitate the disposition of such Registrable Securities in writingaccordance with the intended methods of disposition;
(f) notify each Holder selling Registrable Securities, (1A) when the Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the such Registration Statement or any post-effective amendmentamendment thereto, when the same has become effectivebeen declared effective by the SEC, (2B) of any request by the SEC for amendments or supplements to the such Registration Statement or the Prospectus related prospectus, or for additional information, (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purposesuch or a similar purpose (and the Company shall use its reasonable best efforts to obtain the withdrawal of any such order as soon as practicable), (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in of any jurisdiction or the initiation or threatening of any proceeding for such purpose (and the Company shall use its reasonable best efforts to obtain the withdrawal of any such suspension as soon as practicable), (6E) of the happening occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which that requires the making of any changes to such Registration Statement or related prospectus so that such documents 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 statement therein, in light of the Registration Statementcircumstances under which they were made, not misleading (and the Prospectus Company shall, promptly prepare and furnish to each Holder selling Registrable Securities a reasonable number of copies of a supplemented or any document incorporated amended prospectus 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 by reference in order or necessary to make the statements therein therein, in light of the circumstances under which they are made, not misleading;
), and (dF) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at Company’s determination that the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or filing of 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (registration statement shall be necessary or best efforts 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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)appropriate;
(g) deliver otherwise use its reasonable best efforts to each selling holder comply with all applicable rules and regulations of Registrable Securities and the underwriters, if any, without chargeSEC, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons same may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement theretohereafter be amended;
(h) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of cause all such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by such Registration Statement to be listed or quoted on the Registration Statement; provided that principal securities exchange or national automated quotation system on which similar securities issued by the Company will not be required to qualify generally to do business in any jurisdiction where it is are then listed or quoted or, if not then so qualified listed or quoted, use its reasonable best efforts to take any action which would subject it cause such Registrable Securities to general service of process in any such jurisdiction where it is not then so subjectbe listed on a national securities exchange or quoted on a national automated quotation system;
(i) provide 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;
(j) cooperate with the each Holder selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legendssold; and enable use its best efforts to cause the registrar and transfer agent for the Company to issue, upon request of such seller, certificates for such number of Registrable Securities to be in such denominations and registered in such names as the managing underwriters such seller may reasonably request at least two business three (3) days prior to any sale of Registrable Securities;
(k) in the event the offering is an underwritten offering, obtain a “cold comfort” letter from the independent public accountants for the Company, which accountants shall be of nationally recognized standing and shall have certified the Company’s financial statements included in the Registration Statement or any amendment thereto, in customary form and covering such matters of the type customarily covered by such letters;
(l) furnish, at the request of any Holder selling Registrable Securities on the date such securities are delivered to the underwriters for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the date the Registration Statement with respect to such securities becomes effective, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect in which such opinion is being given as the underwriters, if any, and such seller may reasonably request and are customarily included in such opinions;
(jm) use its best efforts to cause enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Holders of not less than a majority of the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof being sold or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares and causing its officers and directors to participate in such connection, whether or not an underwriting agreement is entered into “road shows” and whether or not other informational meetings organized by the registration is an underwritten registration underwriters); and
(1n) make such representations upon execution and warranties to the holders delivery of such Registrable Securities and the underwriters, if any, in form, substance and scope customary confidentiality agreements as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwritersreasonably request, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the any Holder selling Registrable SecuritiesSecurities covered by such Registration Statement, any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney attorney, accountant or accountant other agent retained by the sellers any such seller or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationRegistration Statement; provided that the Company shall not be required to make any records, such information or documents that are designated by records available in the Company in writing as confidential shall be kept confidential by such Persons unless disclosure event doing so would constitute a violation of such records, information or documents is required by court or administrative order;any applicable public securities law.
(po) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and The Company will make generally available to its security holderseach Holder proposing to sell Registrable Securities, as soon as reasonably practicable, an earnings statements satisfying statement (which need not be audited) for the provisions twelve months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy Section 11(a) of the Securities Act and Rule 158 thereunder; provided that, the Company shall not be required to make such statement available in the event doing so would constitute a violation of Regulation FD of the SEC or any other applicable public securities law.
(p) The Company will, at all times after the Company has filed a Registration Statement with the SEC pursuant to the requirements of the Securities Act, no later than 45 days after the end Exchange Act, or the securities laws of any 12-month period (other jurisdiction, file all reports required to be filed by it under the Securities Act, the Exchange Act, and the securities laws of such other jurisdiction and the rules and regulations adopted by the SEC thereunder, and take such further action as any Holder or 90 days, if such period is a fiscal year) (1) commencing at the end Holders of any fiscal quarter in which Registrable Securities are sold may reasonably request, all to underwriters in a firm the extent required to enable such holders to be eligible to sell Registrable Securities pursuant to (i) Rule 144 of the Securities Act, or best efforts underwritten offeringany similar rule or regulation hereafter adopted by the SEC, or (2ii) if not sold a Registration Statement on Form S-3 or F-3, as applicable, or any similar registration form hereafter adopted by the SEC. Upon request, the Company will deliver to underwriters Holders of Registrable Securities a written statement as to whether it has complied with such requirements. In connection with any transfer by any Holder of any Registrable Securities pursuant to Rule 144 of the Securities Act, the Company shall cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, and enable certificates for such Registrable Securities to be for such number of shares and registered in such an offering, beginning with names as the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
Holder may reasonably request in writing at least three (q3) promptly days prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition transfer 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceSecurities.
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholders Agreement (Xinyuan Real Estate Co LTD)
Registration Procedures. In connection with (a) If and whenever the Company's Company is required to effect the registration obligations of any Registrable Securities pursuant to Section 3 hereofthis Agreement, the Company will shall use its reasonable best efforts to effect such registration to permit and facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable, and pursuant thereto the Company will shall as expeditiously as possible:
(ai) prepare and file with the SEC, as soon as practicable, SEC (within thirty (30) days after the date on which the Company has given Holders notice of any request for Demand Registration) a Registration Statement or Registration Statements on any appropriate form under the Securities Actwith respect to such Registrable Securities, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include make all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with (including Financial Industry Regulatory Authority filings) in connection therewith and thereafter and (if the NASD, and Registration Statement is not automatically effective upon filing) use its reasonable best efforts to cause such Registration Statement to become effective; provided that that, before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433), the Company will furnish to the holders of the Registrable Securities covered by Holders for such Registration Statement and the underwriters, if any, registration copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents will be subject to the reasonable review of such holders and underwriterscounsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, and give the Holders participating in such registration an opportunity to comment on such documents and keep such Holders reasonably informed as to the registration process; provided, further, that if registration at the time would require the inclusion of pro forma financial or acquired business historical financial information, which requirement the Board determines the Company will not file any is reasonably unable to comply with, then the Company may defer the filing of the Registration Statement or amendment thereto or any Prospectus or any supplement thereto that is required to which effect the holders applicable registration for a reasonable period of a majority of the Registrable Securities covered by time to compile such Registration Statement or the underwriters, if any, shall reasonably objectinformation;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the any Registration Statement as may be necessary to keep the such Registration Statement effective for a period of either (A) not less than ninety (90) days or, if such Registration Statement relates to an underwritten offering in the applicable periodcase of a Demand Registration Statement, such longer period as in the opinion of counsel for the managing underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or the maximum period of time permitted by the Securities Act in the case of a Shelf Registration Statement, or (B) such shorter period which will terminate ending when all of the Registrable Securities covered by such Registration Statement have been sold; cause disposed of (but in any event not before the Prospectus to be supplemented by expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ) and (ii) 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 Statement;
(iii) furnish to each Selling Holder and the applicable period underwriters such number of copies, without charge, of any Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such other documents as such persons may reasonably request from time to time in accordance with order to facilitate the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders disposition of the Registrable Securities covered thereby not being able to sell owned by such Registrable Securities during that period unless such action is required under applicable lawSelling Holder; provided that, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition before amending or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by supplementing any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating Company shall furnish to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed Holders a copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any such proposed amendment or supplement thereto as and not file any such Persons may proposed amendment or supplement to which any Selling Holder reasonably request; the objects. The Company hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the selling holders Selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any such amendment or supplement thereto;
(hiv) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such any Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller Selling Holder, and the managing underwriters, if any reasonably request, use its reasonable best efforts to keep each such registration or underwriter reasonably requests in writing qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or and things that may be necessary or reasonably advisable to enable such Selling Holder and each underwriter, if any, to consummate the disposition of the seller’s Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdictions; provided that the Company will not be required to (i) qualify generally to do business in any such jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any jurisdiction where it is not then so qualified subject or to take any action which would subject it (iii) consent to general service of process in any such jurisdiction where it is not then so subjectsubject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(iv) during any time when a prospectus is required to be delivered under the Securities Act, promptly notify each Selling Holder upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made and, as promptly as practicable, prepare and furnish to such Selling Holders a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(vi) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement,
(vii) cooperate with the selling holders of Registrable Securities Holders and the any managing underwriters, if any, underwriter(s) to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; sold, and enable certificates for such Registrable Securities to be in issued for such denominations number of shares and registered in such names as the Holders and any managing underwriters underwriter(s) may request at least two business days prior to any sale of Registrable Securities to the underwritersreasonably request;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(lviii) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed or, if no similar securities issued by the Company are then listed on any securities exchange, use its reasonable best efforts to cause all such Registrable Securities to be listed on the Nasdaq Global Select Market;
(ix) promptly notify each Selling Holder (i) when the Registration Statement, any prospectus supplement or any post-effective amendment to the Registration Statement has become effective (ii) of any written comments by the SEC or any request by the SEC for amendments or supplements to such Registration Statement or to amend or to supplement any prospectus contained 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 or threatening of any proceedings for any of such purposes, (iv) the removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension, (v) if at the time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3(a)(xiii) below cease to be true and correct and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of such Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;
(x) make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to the applicable Registration Statement and any attorney, accountant or other agent retained by any such Selling Holder or underwriter all financial and other records, pertinent corporate documents and documents relating to the business of the Company reasonably requested by such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Selling Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement and make senior management of the Company available for customary due diligence and drafting activity; provided that any such Person gaining access to information or personnel pursuant to this Section 3(a)(x) shall (i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business and (ii) agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such person is notified, unless (A) the release of such information is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (B) the release of such information, in the opinion of such person, is required to be released by law or applicable legal process, (C) such information is or becomes publicly known without a breach of this Agreement, (D) such information is or becomes available to such person on a non-confidential basis from a source other than the Company or (E) such information is independently developed by such person. In the case of a proposed disclosure pursuant to (A) or (B) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the holders Company, assist the Company in seeking to prevent or limit the proposed disclosure;
(xi) in the case of an underwritten offering, promptly incorporate in a majority prospectus supplement or post-effective amendment such information as the managing underwriters or any Selling Holder reasonably requests to be included therein, the purchase price being paid therefor by the underwriters and any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(xii) reasonably cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities or and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority;
(xiii) in the case of an underwritten offering, enter into such customary agreements (including underwriting agreements with customary provisions in such forms as may be requested by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as the Selling Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and Securities;
(xiv) in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is case of an underwritten registration (1) offering, make such representations and warranties senior management of the Company available to assist to the holders extent reasonably requested by the managing underwriters of any Underwritten Offering to be made pursuant to such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth registration in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority marketing of the Registrable Securities being soldto be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in the Underwritten Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary registered offering of its Common Stock
(xv) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; use reasonable best efforts to: (3a) obtain "cold comfort" letters and updates thereof from the Company's all consents of independent certified public accountants required to be included in the Registration Statement and (b) in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the selling holders underwriters and to the Selling Holders, dated the date of Registrable Securities the underwriting agreement for such offering and the underwritersdate of each closing under the underwriting agreement for such offering, if any, such letters to be signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered in "cold comfort" by comfort letters by as the underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders or Holders of a majority of the Registrable Securities being sold in such offering, as applicable, reasonably request;
(xvi) use reasonable best efforts to obtain: (a) all legal opinions from Company outside counsel (or internal counsel) required to be included in the Registration Statement and (b) in connection with each closing of a sale of Registrable Securities, legal opinions from Company outside counsel (or internal counsel if acceptable to the managing underwriters), if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and addressed to the extent required thereunder;
(o) make available for inspection by a representative underwriters, dated as of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure date of such recordsclosing, information or documents is required by court or administrative order;
(p) otherwise use its best efforts with respect to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; andeach amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature;
(qb) promptly prior As a condition precedent to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing obligations of the Registration Statement)Company to file any registration statement covering Registrable Securities, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller Holder of Registrable Securities as to which any registration is being effected to shall furnish to the Company with such information regarding such Holder and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Holder agrees by acquisition of such Registrable Securities that, that (i) upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof3(a)(v), such holder will Holder shall forthwith discontinue its disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 deliver pursuant 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 registration statement relating to such Registrable Securities current at the time of until such Holder’s receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k3(a)(v); (ii) hereof or upon receipt of any notice from the AdviceCompany of the happening of any event of the kind described in clause (A) of Section 3(a)(ix), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement until such Holder’s receipt of the notice described in clause (iv) of Section 3(a)(ix); and (iii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (B) of Section 3(a)(xi), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement in the applicable state jurisdiction(s) until such ▇▇▇▇▇▇’s receipt of the notice described in clause (C) of Section 3(a)(ix). The length of time that any registration statement is required to remain effective shall be extended by any period of time that such registration statement is unavailable for use pursuant to this paragraph, provided in no event shall any registration statement be required to remain effective after the date on which all Registrable Securities cease to be Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Bowhead Specialty Holdings Inc.), Registration Rights Agreement (Bowhead Specialty Holdings Inc.)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Section 3 hereofthe provisions of this Agreement, the Company will Parent shall use its best commercially reasonable efforts to effect such registration to permit the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Parent shall as expeditiously soon as possiblereasonably practicable and as applicable:
(a) subject to Section 2, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become be declared effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and 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 with respect to the disposition of all securities covered by Registrable Securities subject thereto for a period ending on the earlier of (i) 6 months after the effective date of such Registration Statement during and (ii) the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of date on which all the Registrable Securities covered thereby not being able subject thereto have been sold pursuant to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableRegistration Statement;
(c) notify the selling holders of Registrable Securities and the managing underwriterswithin a reasonable time before filing such Registration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 thereto with the Commission, furnish to the Registration Statement or the Prospectus or for additional information, (3) of the issuance one counsel selected by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 underwriters and the holders of a majority of the Registrable Securities being sold agree should included in such Registration Statement, Prospectus or amendments or supplements thereto copies of such documents proposed to be included therein relating filed, which documents shall be subject to the plan review, comment and approval of distribution such counsel;
(d) notify each selling holder of Registrable Securities, promptly after Parent 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 with respect the Commission;
(e) furnish to each selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto (in each case including all exhibits 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 owned by such seller;
(f) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any selling holder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holders; provided, that Parent shall not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this Section 5(f);
(g) notify each selling holder of such Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, Parent shall prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) make available for inspection by any selling holder 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 holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of Parent, and cause Parent’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement;
(i) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;
(k) in connection with an Underwritten Offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, information making appropriate officers of Parent available to participate in “road show” and other customary marketing activities (including one-on-one meetings with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering prospective purchasers 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendmentSecurities));
(fl) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its holders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than thirty (30) days after the end of the 12-month period beginning with the first day of Parent’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if Parent timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) furnish to each selling holder of Registrable Securities and each managing underwriter, without chargeif any, at least one signed copy with (i) a written legal opinion of Parent’s outside counsel, dated the closing date of the Registration Statement offering, in form and substance as is customarily given in opinions of registrants’ counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by Parent’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 5(f), use its commercially reasonable efforts to cause such 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 Parent to enable the seller or sellers thereof or the underwriters, if any, holders of such Registrable Securities to consummate the disposition of such Registrable SecuritiesSecurities in accordance with their intended method of distribution thereof;
(ko) upon notify the occurrence holders of Registrable Securities promptly of any event contemplated request by paragraph the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(c)(6p) aboveadvise the holders of Registrable Securities, prepare a supplement promptly after it shall receive notice or posteffective amendment to obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the related Prospectus initiation or threatening of any document incorporated proceeding for such purpose and promptly use its commercially reasonable 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;
(q) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a Controlling Person of Parent, to participate in the preparation of such Registration Statement and to require the insertion therein by reference or file any other required document so thatof language, as thereafter delivered furnished to Parent in writing, which in the purchasers reasonable judgment of such holder and its counsel should be included;
(r) cooperate with the holders of the Registrable SecuritiesSecurities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that Parent may satisfy its obligations hereunder without issuing physical stock certificates through the Prospectus will not contain an untrue statement use of a material fact or omit to state any material fact necessary to make the statements therein not misleadingfacilities of The Depository Trust Company (“DTC”);
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(ms) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyDTC; provided, that Parent may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of DTC;
(nt) enter into such agreements (including an underwriting agreement) and take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to Parent, Parent will take all commercially reasonable action to make any such prohibition inapplicable; and
(u) otherwise use its commercially reasonable efforts to take all other actions in connection therewith in order steps necessary to expedite or facilitate effect the disposition registration of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicehereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (KLX Energy Services Holdings, Inc.), Registration Rights Agreement (Quintana Energy Services Inc.)
Registration Procedures. In connection with Whenever the Company's registration obligations Holder has requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company Corporation will use its best commercially reasonable efforts to effect such complete the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof within the time periods set forth in this Agreement, and pursuant thereto the Company Corporation will as expeditiously promptly as possiblereasonably practicable:
(ai) prepare and file with the SEC, as soon as practicableSEC with respect to any Demand Registration, a Registration Statement or Registration Statements registration statement on any appropriate form under the Securities Act, which form shall be available for the sale of the Act with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best commercially reasonable efforts to cause such Registration Statement registration statement to become effective; , provided that as far in advance as practicable before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements amendment thereto, the Company Corporation will furnish to the holders Holder copies of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies reasonably complete drafts of all such documents proposed prepared to be filed, which documents will be subject to the reasonable review of such holders and underwritersfiled (including exhibits), and the Company Holder shall have the opportunity to discuss any information contained therein with the Corporation and the Corporation will not file consider all corrections reasonably requested by the Holder with respect to such information prior to filing any Registration Statement such registration statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectamendment;
(bii) except in the case of a Shelf Registration, prepare and file with the SEC such amendments and amendments, post-effective amendments amendments, and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, a period of not less than 180 days (or such shorter lesser period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause as is necessary for the Prospectus underwriters in an underwritten offering to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; sell unsold allotments) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement registration statement;
(iii) in the case of a Shelf 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 continuously effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities subject thereto for a period ending on the earlier of the date on which all the Registrable Securities subject thereto have been sold pursuant to such registration statement and the date of expiration of such Shelf Registration;
(iv) furnish to the Holder and the underwriters of the securities being registered such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), any issuer free writing prospectus, any documents incorporated by reference therein and such other documents as such seller or underwriters may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller or the sale of such securities by such underwriters (it being understood that, subject to Section 2.5 and the requirements of the Securities Act and applicable state securities laws, the Corporation consents to the use of the prospectus, any amendment or supplement to thereto and any issuer free writing prospectus by the Prospectus; Holder and the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during underwriters in connection with the applicable period if it voluntarily takes any action that would result in selling holders offering and sale of the Registrable Securities covered thereby not being able by the registration statement of which such prospectus, amendment or supplement is a part);
(v) use commercially reasonable efforts to sell register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as the managing underwriter reasonably requests (or, in the event the registration statement does not relate to an underwritten offering, as the Holder may reasonably request); use commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during that the period unless in which such action registration statement is required under applicable lawto be kept effective; and do any and all other acts and things which may be reasonably necessary or advisable to enable the Holder to consummate the disposition of the Registrable Securities owned by such seller in such jurisdictions (provided, provided however, that the foregoing shall Corporation will not apply be required to actions taken by the Company (A) qualify generally to do business in good faith and any jurisdiction where it would not otherwise be required to qualify but for valid business reasonsthis subparagraph, including without limitation the acquisition or divestiture (B) consent to general service of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(kprocess in any such jurisdiction), if applicable(C) subject itself to taxation in any such jurisdiction or (D) register as a foreign corporation in any such jurisdiction;
(cvi) promptly notify the selling holders of Registrable Securities Holder and the managing underwriters, if any, promptly, each underwriter and (if requested by any such Person) confirm such advice notice in writing, writing (1A) when the Prospectus any such registration statement or any Prospectus issuer free writing prospectus used in connection therewith, or any related prospectus or any prospectus supplement or post-effective amendment has been filed, filed and, with respect to the Registration Statement any such 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 additional information, (3B) of the issuance by the Commission any state securities or other regulatory authority of any stop order suspending the effectiveness qualification or exemption from qualification of the Registration Statement any of idle Registrable Securities under state securities or “blue sky” laws or the initiation of any proceedings for that purpose, and (4C) if at any time the representations and warranties of the Company contemplated when a registration statement pursuant to a Demand Registration (other than a Shelf Registration) is effective or during any period covered by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) a Shelf Notice of the happening of any event which makes any statement made in the Registration Statement, the Prospectus any such registration statement or any document incorporated therein by reference related prospectus or issuer free writing prospectus untrue or which requires the making of any changes in the Registration Statementsuch registration statement, the Prospectus prospectus, issuer free writing prospectus or documents so that they will not contain any document incorporated untrue statement of a material fact or omit to state any material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading, and, subject to the Corporation’s right to issue a Suspension Notice, as promptly as practicable thereafter following the expiration of any applicable Suspension Period, prepare and file with the SEC and furnish a supplement or amendment to such prospectus or additional issuer free writing prospectus so that, as thereafter deliverable to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(dvii) make every permit the Holder to participate in the preparation of such registration or comparable statement and to consider the insertion therein of material, furnished to the Corporation in writing, which in the reasonable effort to obtain the withdrawal of any order suspending the effectiveness judgment of the Registration Statement at the earliest possible momentHolder and its counsel should be included;
(eviii) use commercially reasonable efforts to make reasonably available members of management of the Corporation, as selected by the Holder, for such assistance in the selling effort relating to the Registrable Securities covered by such registration as may be reasonably requested by the Holder, including, but not limited to, the participation of such members of the Corporation’s management in live or recorded road show presentations;
(ix) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, including the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, and make generally available to the Corporation’s security holders an earnings statement satisfying the provisions of Section 11 (a) of the Securities Act no later than 90 days after the end of the 12 month period beginning with the first day of the Corporation’s first fiscal quarter commencing after the effective date of a registration statement, which earnings statement shall cover said 12 month period, and which requirement will be deemed to be satisfied if the Corporation timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
(x) if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, the Holder promptly incorporate in a Prospectus prospectus supplement or post-effective amendment or prepare an issuer free writing prospects including such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should underwriter or any seller reasonably requests to be included therein relating to the plan of distribution with respect to such Registrable Securitiestherein, including, without limitation, information with respect to the number of Registrable Securities being sold to by such underwritersseller, the purchase price being paid therefor by such the 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 promptly make all required filings of such Prospectus prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendmentissuer free writing prospectus;
(fxi) furnish to each selling holder as promptly as practicable after filing with the SEC of Registrable Securities and each managing underwriterany document which is incorporated by reference into a registration statement (in the form in which it was incorporated), without charge, at least one signed deliver a copy of each such document to the Registration Statement Holder unless available on the SEC’s Electronic Data Gathering and Retrieval System (▇▇▇▇▇) or any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference)successor system;
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(ixii) cooperate with the selling holders of Registrable Securities sellers and the managing underwriters, if any, underwriter to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and (which shall not bearing bear any restrictive legends; legends unless required under applicable law) representing securities sold under any registration statement, and enable such Registrable Securities securities to be in such denominations and registered in such names as the managing underwriters underwriter or such sellers may request at least two business days and keep available and make available to the Corporation’s transfer agent prior to any sale the effectiveness of Registrable Securities to the underwriterssuch registration statement a supply of such certificates;
(jxiii) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) promptly make available for inspection by a representative of the holders of a majority of the Registrable Securitiesany seller, any underwriter participating in any disposition pursuant to such registrationany registration statement, and any attorney attorney, accountant or accountant other agent or representative retained by any such seller or underwriter (collectively, the sellers or underwriter“Inspectors”), all financial and other records, pertinent corporate documents and properties of the CompanyCorporation, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's Corporation’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant Inspector in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderregistration statement;
(pxiv) otherwise furnish to the Holder and underwriter a signed counterpart of (A) an opinion or opinions of counsel to the Corporation, and (B) a comfort letter or comfort letters from the Corporation’s independent registered public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the sellers or managing underwriter reasonably requests (each such opinion and comfort letter to be addressed to both the seller and underwriter, if reasonably possible);
(xv) use its best commercially reasonable efforts to comply cause the Registrable Securities included in any registration statement to be listed on each securities exchange, if any, on which similar securities issued by the Corporation are then listed;
(xvi) provide a transfer agent and registrar for all Registrable Securities registered hereunder;
(xvii) cooperate with all applicable rules the Holder and regulations 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 SEC, and make generally available Financial Industry Regulatory Authority;
(xviii) during the period when the prospectus is required to its security holders, earnings statements satisfying the provisions of Section 11(a) of be delivered under the Securities Act, no later than 45 days after promptly file all documents required to be filed with the end SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(xix) notify the Holder promptly of any 12-month period request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information;
(xx) enter into such agreements (including underwriting agreements in the managing underwriter’s customary form) as are customary in connection with an underwritten registration;
(xxi) advise the Holder, promptly after it shall receive notice or 90 daysobtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and promptly use commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such period is a fiscal year) (1) 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 (2) 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 12-month periodsstop order should be issued; and
(qxxii) promptly prior use commercially reasonable efforts to take all other steps necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing registration of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Adviceregistration statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Carlyle Secured Lending, Inc.), Registration Rights Agreement (Carlyle Secured Lending, Inc.)
Registration Procedures. (a) In connection with the Company's registration obligations pursuant to Section 3 hereoffiling by the Company of a Demand Registration Statement, the Company will shall furnish to Torchmark as many copies of the prospectus, including each preliminary prospectus, in conformity with the requirements of the Securities Act as Torchmark shall reasonably request for the purpose of effecting the plan of distribution set forth therein.
(b) The Company shall use its best efforts to effect such registration to permit register or qualify the sale shares of Class A Common Stock and/or Class B Common Stock covered by a Demand Registration Statement under the securities laws of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will states as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Torchmark shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable periodrequest; provided, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplementhowever, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; that the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten this paragraph (or best efforts underwrittenb) 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally as a foreign corporation or execute a general consent 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 jurisdiction.
(c) If the Company has delivered preliminary or final prospectuses to Torchmark and after having done so the prospectus is amended to comply with the requirements of the Securities Act, the Company shall promptly notify Torchmark and, if requested by the Company, Torchmark shall immediately return all prospectuses to the Company. The Company shall promptly provide Torchmark with revised prospectuses.
(d) At the request of Torchmark, the Company shall sign an underwriting agreement in customary form with managing underwriter selected by Torchmark and reasonably satisfactory to the Company, and shall cooperate with such jurisdiction where it is not then so subject;managing underwriter in all reasonable respects to facilitate the distribution contemplated by Torchmark, including without limitation making available the books, records and personnel of the Company for the purpose of the underwriter's "due diligence" and providing customary legal opinions and auditors' comfort letters.
(e) The Offering Expenses incurred in complying with this Section 5.3 shall be paid as follows:
(i) cooperate Offering Expenses in connection with a Demand Registration Statement shall be paid by Torchmark; provided, that in the selling holders event any shares of Registrable Securities the Company's stock are included in a Demand Registration Statement in addition to the shares of Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group, the Company shall pay its prorata portion of the Offering Expenses equal to the Offering Expenses multiplied by a fraction, the numerator of which is the number of any shares included in the Demand Registration Statement other than the shares held by Torchmark or any other member of the Torchmark Group and the managing underwritersdenominator of which is the total number of shares included in the Demand Registration Statement; and
(ii) Offering Expenses in connection with a Company Registration Statement (as defined below) shall be paid by the Company; provided, if anythat in the event Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group is included in the Company Registration Statement, Torchmark shall pay its prorata portion of the Offering Expenses equal to facilitate the timely preparation Offering Expenses multiplied by a fraction, the numerator of which is the number of such Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group and delivery included in the Company Registration Statement and the denominator of certificates representing Registrable Securities which is the total number of shares included in the Company Registration Statement.
(f) Prior to be sold March 31, 2002, each time the Company proposes to register any of its securities (except with respect to registration statements on Form S-4 or Form S-8 or another form available for registration of securities other than for sale to the public for cash), whether or not for sale for its own account, which is in whole or in part, an underwritten public offering (a "Company Registration Statement"), it will give prompt written notice to Torchmark of its intention to do so 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 of Torchmark's rights under this Section 5.3(f). Torchmark may request at least two business within thirty (30) days prior after receipt of any such notice to include in the Company Registration Statement some or any sale portion of Registrable Securities to the underwriters;
(j) shares of Class A Common Stock or Class B Common Stock then held by Torchmark or any other member of the Torchmark Group. The Company shall use its best efforts to cause the Registrable Securities covered by the applicable Company Registration Statement to include all shares of Class A Common Stock and/or Class B Common Stock that Torchmark requested to be registered with or approved by such other governmental agencies or authorities as included; provided, however, the number of shares of Class A Common Stock and/or Class B Common Stock Torchmark requested be included in the Company Registration Statement may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
reduced (k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file pro rata among Torchmark and any other required document stockholder with similar registration rights based on the number of shares so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement requested to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4registered) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative that the managing underwriter shall be of the holders of a majority opinion that such inclusion would adversely affect the marketing of the Registrable Securities, any underwriter participating securities to be sold. Torchmark's exercise of its right under this Section 5.3(f) to include shares in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall not be extended by the number of days during the period from and including the date of the giving of such notice pursuant counted against Torchmark's right to Section 6(c)(6) hereof to 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(k) hereof or the Advicerequest three registrations.
Appears in 2 contracts
Sources: Public Offering and Separation Agreement (Waddell & Reed Financial Inc), Public Offering and Separation Agreement (Waddell & Reed Financial Inc)
Registration Procedures. In connection with the Company's registration obligations of the Registrable Interest pursuant to Section 3 or 4 hereof, the Company will use its best efforts to shall effect such registration to permit the sale of such the Registrable Securities Interest in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare Prepare and file with the SECSEC on or prior to the Demand Registration Date or Shelf Filing Date, as soon as practicableapplicable, a Registration Statement as prescribed by Section 2, 3 or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD4, and use its best efforts to cause such Registration Statement to become effective; effective and remain effective as provided that herein, provided that, as far in advance as practical before filing a any Registration Statement or Prospectus or any amendments or supplements thereto, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement and afford AcquisitionCo, one special counsel for AcquisitionCo (“AcquisitionCo Counsel”) and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed, which documents will be subject . AcquisitionCo or AcquisitionCo Counsel shall have the opportunity to the reasonable review of such holders and underwriters, object to any information pertaining to AcquisitionCo that is contained therein and the Company will make all corrections reasonably requested by AcquisitionCo with respect to such information prior to filing any such Registration Statement, Prospects or any amendment or supplement thereto. The Company shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement amendments or supplements thereto in respect of which AcquisitionCo must be afforded an opportunity to which review prior to the holders filing of a majority of the Registrable Securities covered by such Registration Statement document, if AcquisitionCo, AcquisitionCo Counsel, or the managing underwriters, if any, shall reasonably object;. If any such Registration Statement or prospectus refers to AcquisitionCo, then AcquisitionCo shall have the right to require (i) to the extent not prohibited by the Securities Act or the rules and regulations promulgated thereunder or the SEC, the applicable registration form or the SEC, the insertion therein of language, in form and substance satisfactory to AcquisitionCo, to the effect that the holding by AcquisitionCo of the Registrable Interest does not necessarily make AcquisitionCo a “controlling person” of the Company within the meaning of the Securities Act and is not to be construed as a recommendation by AcquisitionCo of the investment quality of the Registrable Interest covered thereby and that such holding does not imply that AcquisitionCo will assist in meeting any future financial requirements of the Company, or (ii) in the event that reference to AcquisitionCo by name or otherwise is not required by the Securities Act or any rules and regulations promulgated thereunder, the applicable registration form or the SEC, the deletion of the reference to AcquisitionCo.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Shelf Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldShelf Effectiveness Period; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities of the Registrable Interest covered by such Registration Statement during the applicable period in accordance with the intended method as so amended or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Prospectus as so supplemented. The Company shall not be deemed not to have used its best efforts to keep a Registration Statement effective during the applicable period Applicable Period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby AcquisitionCo not being able to sell such Registrable Securities Interest during that period unless such action is required under by applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;.
(c) notify the selling holders of Registrable Securities Notify AcquisitionCo, AcquisitionCo Counsel and the managing underwriters, if any, promptlypromptly (but in any event within two Business Days), and (if requested by any such Person) confirm such advice notice in writing, (1A) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effectiveeffective (including in such notice a written statement that AcquisitionCo may, (2) upon request, obtain, without charge, one conformed copy of any request by the SEC for amendments or supplements to the such Registration Statement or the Prospectus post-effective amendment including financial statements and schedules, documents incorporated or for additional informationdeemed to be incorporated by reference and exhibits), (3B) of the initiation of a proceeding with respect to, or the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of, any preliminary prospectus or the initiation of any proceedings for that purpose, (4C) if at any time when a Prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Interest the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by paragraph (oSection 6(n) below hereof cease to be true and correct, (5D) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or the Registrable Securities Interest for offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose and purpose, (6E) of the happening of any event which or any information becoming known that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not 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 under which they were made, not misleading, and (F) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) make every reasonable effort Use its best efforts to obtain prevent the withdrawal issuance of any order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Interest for sale in any jurisdiction, and, if any such order is issued, to use its best efforts to obtain the withdrawal of any such order at the earliest possible moment;.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringAcquisitionCo, (i) promptly incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should underwriters, if any, AcquisitionCo or AcquisitionCo Counsel reasonably request to be included therein relating to the plan of distribution with respect to such Registrable Securitiestherein, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received notification of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;amendment and (iii) supplement or make amendments to such Registration Statement, provided that the Company shall not be required to take actions that in the opinion of counsel for the Company are in violation of applicable law.
(f) furnish Furnish to each selling holder of Registrable Securities AcquisitionCo, AcquisitionCo Counsel and each managing underwriter, if any, without charge, at least one signed copy such number of conformed copies of the Registration Statement and any each post-effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated by reference);as AcquistionCo and each managing underwriter, if any, may reasonably request to facilitate the disposition of the Registrable Interests.
(g) deliver Deliver to each selling holder of Registrable Securities AcquisitionCo, AcquisitionCo Counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and any each amendment or supplement thereto and any documents incorporated by reference therein and any other Prospectus filed under Rule 424 of the Securities Act relating to the Registrable Interests as such Persons may reasonably request; , and, subject to the last paragraph of this Section 6, the Company hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities AcquisitionCo and the underwriters, underwriters or agents (if any), and dealers (if any), in connection with the offering and sale of the Registrable Securities Interest covered by the such Prospectus or and any amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable SecuritiesInterest, to use its best efforts to register or qualify or qualify, and to cooperate with the selling holders of Registrable SecuritiesAcquisitionCo, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities Interest for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller AcquisitionCo or underwriter the managing underwriters reasonably requests request as are reasonably necessary to permit the offer and sale of such Registrable Interest in writing such jurisdictions, provided that where the Registrable Interest is offered other than through an underwritten offering, the Company agrees to cause its counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 6(h); keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities Interest covered by the applicable Registration Statement; , provided that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to qualified, take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;subject or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction.
(i) cooperate Cooperate with the selling holders of Registrable Securities AcquisitionCo and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities Interest to be sold and sold, which certificates shall not bearing bear any restrictive legendslegends and shall be in a form eligible for deposit with The Depository Trust Company; and enable such Registrable Securities Interest to be in such denominations and registered in such names as the managing underwriters underwriters, if any, or AcquisitionCo may request at least two business days prior to any sale of Registrable Securities to the underwriters;reasonably request.
(j) use its Use their best efforts to cause the Registrable Securities Interest covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities authorities, including without limitation any applicable gaming regulators, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;Interest, except as may be required solely as a consequence of the nature of AcquisitionCo’s business, in which case the Company will cooperate in all reasonable respects with AcquistionCo regarding the filing of such Registration Statement and the granting of such approvals.
(k) upon Upon the occurrence of any event contemplated by paragraph clauses (c)(6E) aboveor (F) of Section 6(c) hereof, as promptly as practicable prepare and (subject to Section 6(a) hereof) file with the SEC, at the expense of the Company, a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesInterest being sold thereunder, the any such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) cause all Registrable Securities covered by In the event of an Underwritten Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date Underwritten Offering of the Registration StatementRegistrable Interest (except that the “cold comfort” letters described in (iii) below shall be required whether such offering is underwritten or not), provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for enter into an underwriting agreement as is customary in underwritten offerings of securities similar to the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) Interest and take all such other actions in connection therewith as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Securities Interest, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1i) make such representations and warranties to the holders underwriters, with respect to the business of such Registrable Securities the Company and its subsidiaries and the underwritersRegistration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in formeach case, substance and scope as are customarily made by issuers an issuer to underwriters in primary underwritten offerings of securities similar to the Registrable Interest, and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof (which counsel in form and opinions (in form, scope and substance) shall be substance reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3iii) obtain "“cold comfort" ” letters and updates thereof in form and substance reasonably satisfactory to the managing underwriters from the Company's independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants 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 the selling holders each of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters by underwriters in connection with primary underwritten offeringsofferings and such other matters as reasonably requested by the underwriters; and (4iv) if an underwriting agreement is entered into, the same shall contain customary indemnification provisions and procedures, in any event, no less favorable than those set forth in full the indemnification Section 7 hereof (or such other provisions and procedures of Section 8 hereof acceptable to AcquisitionCo and the managing underwriters or agents) with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement agreement, or as and to the extent required thereunder;. AcquisitionCo shall be a party to such underwriting agreement and may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of AcquisitionCo and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of AcquisitionCo. AcquisitionCo shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding AcquisitionCo, AcquisitionCo’s Registrable Interest and AcquisitionCo’s intended method of distribution and any other representations required by applicable laws, rules or regulations, this Agreement or the underwriters.
(om) make Make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesAcquisitionCo, any underwriter participating in any such disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwritersInterest, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders any attorney, accountant or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which other agent retained by AcquisitionCo or any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.such
Appears in 2 contracts
Sources: Registration Rights Agreement (NGA Holdco, LLC), Registration Rights Agreement (NGA Holdco, LLC)
Registration Procedures. In connection with (a) When the Company's Company is required by the provisions of this Agreement to effect the registration obligations pursuant to Section 3 hereofof shares of Registrable Securities, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(ai) prepare and file with the SEC, as soon as practicable, Commission a Shelf Registration Statement or Registration Statements on any appropriate form under the Securities Act, (advance draft copies of which form shall be available for furnished to the sale holders of the Registrable Securities to be included in accordance such Shelf Registration Statement and their respective counsel as expeditiously as possible prior to the filing thereof with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC SEC) with respect to be filed therewith, cooperate and assist in any filings required to be made with the NASD, such shares and use its reasonable best efforts to cause such Shelf Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, and remain effective for the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectEffective Period as described in Section 2.1(c) hereof;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Shelf Registration Statement and the prospectuses used in connection therewith as may be necessary to keep the such Shelf Registration Statement effective for and current during the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus Effective Period and 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 with respect to the sale or other disposition of all securities shares covered by such Shelf Registration Statement during the applicable period in accordance with Statement, including such amendments and supplements as may be necessary to reflect the intended method of disposition from time to time of the holder or methods holders of distribution by Registrable Securities who have requested that any of their shares be sold or otherwise disposed of in connection with the sellers thereof set forth in such registration (collectively, the “Prospective Sellers”) or to correct or update any misstatements or omissions which, if not corrected or updated, would reasonably be expected to cause the Registration Statement or supplement the prospectuses used in connection therewith to fail to comply with applicable disclosure requirements;
(iii) furnish to each Prospective Seller such number of copies of each prospectus, including preliminary prospectuses and amendments and supplements to any prospectus, or any free writing prospectus related thereof, in conformity with the Prospectus; requirements of the Securities Act, and such other documents as the Prospective Seller may reasonably request in order to facilitate the public sale or other disposition of the shares owned by it;
(iv) if applicable, register or qualify the shares covered by such Shelf Registration Statement under such other securities or blue sky or other applicable laws of such jurisdictions as each Prospective Seller shall reasonably request to enable such seller to consummate the public sale or other disposition of the shares owned by such seller, provided that the Company shall not be deemed required in connection therewith or as an election thereto to have used its best efforts qualify to keep do business or to file a Registration Statement effective during the applicable period if it voluntarily takes general consent to service of process in any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablejurisdiction;
(cv) promptly notify each Prospective Seller at any time when a prospectus relating thereto is required to be delivered under the selling holders Securities Act, of Registrable Securities and (x) the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when filing of the Prospectus Shelf Registration Statement or any Prospectus prospectus or prospectus supplement to be used in connection therewith, or post-effective any amendment has been filedor supplement thereto or any free writing prospectus related thereto, and, with respect to the Registration Statement such registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ; and (2y) of any written comments from the SEC with respect to any filing referred to in clause (x) and any written request by the SEC for amendments or supplements to the Shelf Registration Statement or the Prospectus any prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus prospectus supplement thereto 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 in order to make the statements therein not misleadingfree writing prospectus related thereto;
(dvi) make every the Company shall permit counsel for the Prospective Sellers to review the Shelf Registration Statement and all amendments and supplements thereto (as well as all requests for acceleration or effectiveness thereof) a reasonable effort period of time prior to obtain their filing with the withdrawal of SEC, and not file any order suspending the effectiveness document in a form to which such counsel reasonably objects and will not request acceleration of the Shelf Registration Statement at the earliest possible momentwithout prior notice to such counsel;
(evii) if requested by the managing underwriter or underwriters or [reserved]
(viii) provide a holder of transfer agent and registrar for all such Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-not later than the effective amendment date of such information Shelf Registration Statement;
(ix) enter into such customary agreements and take all such other customary actions as the managing 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderSecurities;
(ox) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Prospective Seller and any attorney attorney, accountant or accountant other agent retained by the sellers or underwriterany such Prospective Seller, all reasonable financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent public accountants who have certified the Company’s financial statements included in the Registration Statement to supply all information reasonably requested by any such representativeseller, underwriterattorney, attorney accountant or accountant agent in connection with the preparation of such registration; provided that Registration Statement;
(xi) permit any recordsProspective Seller who, information or documents that are designated by in the reasonable judgment of the Company upon advice of counsel, might be deemed to be an underwriter or controlling person of the Company, to participate in writing as confidential shall be kept confidential by such Persons unless disclosure the preparation of such recordsRegistration Statement;
(xii) provide written notice to each Prospective Seller as soon as the Company becomes aware of any misstatements or omissions which, information if not corrected or documents is required by court updated, would reasonably be expected to cause the Shelf Registration Statement or administrative the prospectuses used in connection therewith to fail to comply with applicable disclosure requirements;
(xiii) in the event of the issuance of any stop order suspending the effectiveness of the Shelf Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the registration or qualification of any Registrable Securities included in such Shelf Registration Statement for sale in any jurisdiction where such shares had previously been registered or qualified upon the request of a Prospective Seller, use its reasonable best efforts to promptly obtain the withdrawal of such order;
(pxiv) the Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of SEC in connection with any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periodsregistration hereunder; and
(qxv) promptly prior the Company shall take all other reasonable actions necessary to expedite and facilitate disposition by each Investor of its Registrable Securities pursuant to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Shelf Registration Statement), provide copies of such document to counsel to the selling holders .
(b) Each Prospective Seller of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to shall furnish to the Company such information regarding the distribution of such securities as the Company may reasonably require from time to time reasonably request the Prospective Seller for inclusion in writing. Each holder the Shelf Registration Statement (and the prospectus included therein).
(c) The Prospective Sellers shall not effect sales of Registrable Securities agrees the shares covered by acquisition of such Registrable Securities that, upon the Shelf Registration Statement after receipt of any facsimile or other written notice from the Company of to suspend sales to permit the happening of any event of Company to correct or update, including to add Option Shares or Option Notes, the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities Shelf Registration Statement or prospectus until such holder's receipt of the Investor receives copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the a supplemented or amended prospectus contemplated by Section 6(kthat corrects the misstatement(s) hereof or omission(s) referred to above and receives notice that any post-effective amendment has become effective.
(d) The Company shall have no obligation to provide an underwritten offering for the Adviceholders of Registrable Securities to dispose of their shares.
Appears in 2 contracts
Sources: Registration Rights Agreement (Endeavour International Corp), Securities Purchase Agreement (Endeavour International Corp)
Registration Procedures. In connection with If and whenever WIND is required to effect the Company's registration obligations pursuant to of any Registrable Securities under the Securities Act as provided in Section 2 or Section 3 hereof, the Company will use its best efforts to WIND shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto WIND shall cooperate in the Company will sale of the securities and shall, as expeditiously as reasonably possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities by the holders thereof or WIND in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith(including, cooperate and assist in any filings required to be made with the NASDwithout limitation, a Partner Distribution), and use its reasonable best efforts to cause such Registration Statement to become effectiveeffective and to remain effective as provided herein; provided provided, however, that no later than ten (10) days before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including, the Company will without limitation, documents that would be incorporated or deemed to be incorporated therein by reference), WIND shall furnish or otherwise make available to the holders of the Registrable Securities covered by such Registration Statement Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will . WIND shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement amendments or supplements thereto (including, without limitation, such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Securities covered by such Registration Statement Statement, their counsel, or the managing underwriters, if any, shall reasonably object;, unless, in the opinion of WIND and its counsel, such filing is necessary to comply with applicable law.
(b) prepare Prepare and file with the SEC Commission such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause continuously effective during 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; period provided herein and 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 Statement; and cause the applicable period in accordance related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended method or methods provisions of distribution the Securities Act with respect to the disposition of the securities covered by the sellers thereof set forth in such Registration Statement Statement, and as so supplemented to be filed pursuant to Rule 424 (or supplement to any similar provisions then in force) under the ProspectusSecurities Act; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes provided, however, that any action that would result in selling holders holder of the Registrable Securities covered thereby not being able that has been included on a “shelf” registration statement may request that such holder’s Registrable Securities be removed from such registration statement, in which event WIND shall promptly either withdraw such registration statement or file a post-effective amendment to sell such registration statement removing such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Securities.
(c) notify the Notify each selling holders holder of Registrable Securities Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any notice from the Commission that there will be a review of a Registration Statement and, to the extent requested by a holder of Registrable Securities, promptly provide such holders, their counsel and the managing underwriters, if any, with a copy of any SEC comments received by WIND in connection therewith, (iii) of any request by the SEC Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iv) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4v) if at any time the representations and warranties of the Company WIND contained in any agreement (including, without limitation, any underwriting agreement) contemplated by paragraph (oSection 5(o) below cease to be true and correct, (5vi) of the receipt by the Company WIND 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 jurisdiction, or the initiation or threatening of any proceeding for such purpose purpose, and (6vii) of the happening of any event which that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, 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 Prospectus statements therein, in light of the circumstances under which they were made, not 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 document incorporated therein by reference material fact necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(d) make every Use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or a any holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate include in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and such holders may reasonably request in order to permit the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan intended method of distribution with respect to of such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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; securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified of the matters to be incorporated in practicable after WIND has received such Prospectus supplement or post-effective amendment;request.
(f) furnish Furnish or make available to each selling holder of Registrable Securities Securities, its counsel and each managing underwriter, if any, without charge, at least one signed copy five conformed copies of the Registration Statement Statement, the Prospectus and any Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated exhibits, unless requested by referencesuch holder, counsel or underwriter);.
(g) deliver Deliver to each selling holder of Registrable Securities Securities, its counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusform of Prospectus) and any each amendment or supplement thereto as such Persons may reasonably requestrequest in connection with the distribution of the Registrable Securities; and WIND, subject to the Company last paragraph of this Section 5, hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any such amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts or things action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdiction; provided provided, however, that the Company WIND will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(i) Unless the Registrable Securities to be sold are uncertificated, cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold and not bearing any restrictive legends; after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriters, if any, or holders may request at least two business days (2) Business Days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to having to issue the underwriters;securities.
(j) use Use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case WIND will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon Upon the occurrence of any event contemplated by paragraph subsection (c)(6c)(vii) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the such Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of from and after a majority of such Registrable Securities or the managing underwriters, if any;
(m) date not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;.
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use Use its reasonable best efforts to comply with cause all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller shares of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.to be authorized to be listed on
Appears in 2 contracts
Sources: Registration Rights Agreement (First Wind Holdings Inc.), Registration Rights Agreement (First Wind Holdings Inc.)
Registration Procedures. In connection Whenever the Purchaser has made a Request in accordance with the Company's registration obligations Section 6.1 that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts to effect such registration to permit will:
(a) not later than the sale 30th calendar day after the receipt by the Company of such a Request, prepare and file with the SEC a Required Registration Statement or Required Shelf Registration Statement, as the case may be, providing for the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof specified in such Request or requests, and shall include all financial statements required will use reasonable best efforts to have such Required Registration Statement or Required Shelf Registration Statement, as the case may be, declared effective by the SEC as soon as practicable thereafter and to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause keep such Registration Statement to become effective; provided that before filing a Required Registration Statement or Prospectus Required Shelf Registration Statement, as the case may be, continuously effective (i) in the case of a Demand Registration, for a period of at least 180 calendar days (or, in the case of an underwritten offering, such period as the underwriters will reasonably require) following the date on which such Required Registration Statement is declared effective (or any amendments or supplements thereto, the Company such shorter period which will furnish to the holders terminate when all of the Registrable Securities covered by such Required Registration Statement and have been sold pursuant thereto) or (ii) in the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders case of a majority of the Shelf Registration, until such time as all Registrable Securities covered by such Required Shelf Registration Statement have been sold pursuant thereto, including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or Required Shelf Registration Statement or the underwritersrelated prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement or Required Shelf Registration Statement, if anyrequired by the rules, shall reasonably objectregulations or instructions applicable to the registration form used by the Company for such Required Registration Statement or Required Shelf Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during for the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable(a) above;
(c) furnish to the Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as the Purchaser may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Purchaser;
(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Purchaser reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Purchaser to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Purchaser; provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or (ii) consent to general service of process in any such jurisdiction;
(e) 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 underwriters of such offering and take such other actions as are prudent and reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, including causing its officers to participate in “road shows” and other information meetings organized by the managing underwriters;
(f) notify the selling holders Purchaser, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and in such case, 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;
(g) use its reasonable best efforts to cause all such Registrable Securities which are registered to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(h) enter into such customary agreements and take all such other actions as the managing Purchaser or the underwriters, if any, promptlyreasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(i) make available for inspection by the Purchaser, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Purchaser or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and (if cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Person) confirm such advice in writing, (1) when the Prospectus Purchaser or any Prospectus supplement underwriter, attorney, accountant or post-effective amendment has been filedagent in connection with such Registration Statement;
(j) if such sale is pursuant to an underwritten offering, anduse reasonable best efforts to obtain “comfort” letters dated the pricing date of the offering of the Registrable Securities and the date of the closing under the underwriting agreement from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing underwriter reasonably requests;
(k) use reasonable best efforts to furnish, at the request of the Purchaser on the date such securities are delivered to the underwriters for sale pursuant to such registration or are otherwise sold pursuant thereto, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect of which such opinion is being given as the underwriters, if any, and the seller may reasonably request and are customarily included in such opinions;
(l) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement or any post-registering such Registrable Securities;
(m) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable but no later than 15 months after the effective amendmentdate of the Registration Statement, when an earnings statement covering the same has become effectiveperiod of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, (2which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(n) cooperate with the Purchaser 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 Financial Industry Regulatory Authority;
(o) promptly notify in writing the Purchaser and the underwriter, if any, of the following events:
(i) the effectiveness of any such Registration Statement;
(ii) any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, information and when same has been filed and become effective;
(3iii) of the issuance by the Commission 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
(4iv) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence initiation or threat of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of proceeding for such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderpurpose;
(p) otherwise use its best efforts to comply with all applicable rules if requested by any underwriter, agree, and regulations cause the Company and any directors or officers of the SECCompany to agree, and make generally available to its security holders, earnings statements satisfying be bound by customer “lock-up” agreements restricting the provisions ability to dispose of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periodsCompany securities; and
(q) promptly prior use reasonable best efforts to take all other steps reasonably necessary to effect the registration of the Registrable Securities contemplated hereby. If any such registration or comparable statement refers to the filing Purchaser by name or otherwise as the holder of any document which securities of the Company and if in its sole and exclusive judgment, the Purchaser is or might be deemed to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing a controlling person of the Registration Statement)Company, provide copies the Purchaser will have the right to require (i) the insertion therein of language, in form and substance satisfactory to the Purchaser and presented to the Company in writing, to the effect that the holding by the Purchaser of such document securities is not to counsel be construed as a recommendation by the Purchaser of the investment quality of the Company’s securities covered thereby and that such holding does not imply that the Purchaser will assist in meeting any future financial requirements of the Company or (ii) in the event that such reference to the selling holders Purchaser by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of Registrable Securities and the reference to the managing underwriters, if any, make Purchaser; provided that with respect to this clause (ii) the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to Purchaser must furnish to the Company an opinion of counsel to such effect, which opinion and counsel will be reasonably satisfactory to the Company. In connection with any Registration Statement in which the Purchaser is participating, the Purchaser will furnish to the Company in writing such information regarding the distribution of such securities and affidavits as the Company may from time to time reasonably request requests specifically for use in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of connection with any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Adviceprospectus.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Coca Cola Co), Common Stock Purchase Agreement (Green Mountain Coffee Roasters Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts to effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement on Form S-3 (or Registration Statements on any appropriate form equivalent successor form) under the Securities Act, which form shall be Act available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and their counsel (the underwriters, if any, "Special Counsel") copies of all such documents proposed to be filed, which documents and will be subject to the reasonable review of provide such holders and underwriters, the Special Counsel five days to review and the comment on such documents. The Company will not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents which, upon filing, would be incorporated or deemed to be incorporated by reference therein) to which the holders of a majority of the Registrable Securities covered by such Registration Statement or and the underwriters, if anySpecial Counsel, shall reasonably objectobject on a timely basis;
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified in Section 3; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablesupplemented;
(c) notify Notify the selling holders of Registrable Securities and the managing underwriters, if anySpecial Counsel, promptly, and (if requested by any such Personperson) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iv) if at any time the representations and warranties of the Company contained in any agreement contemplated by paragraph Section 4(m) hereof (oincluding any underwriting agreement) below cease to be true and correct, (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6vi) of the happening occurrence of any event which makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in a Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading and, 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 or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vii) of the Company's determination that a post-effective amendment to a Registration Statement would be appropriate;
(d) make Use every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(e) if If requested by the managing underwriter or underwriters or holders of a holder majority of the Registrable Securities being sold in connection with an underwritten offeringregistered, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the such 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor as may be required by such underwriters applicable law and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company will not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish Furnish to each selling holder of Registrable Securities and each managing underwriter, the Special Counsel without charge, at least one signed conformed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed incorporated therein by reference and all exhibits (including those incorporated exhibits, unless requested in writing by referencesuch holder or counsel);
(g) deliver Deliver to each selling holder of Registrable Securities and the underwriters, if any, Special Counsel without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; and the Company hereby consents to the use of the such Prospectus or any each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;
(h) prior Prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel Securities in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing writing; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions jurisdiction of the Registrable Securities covered by the applicable Registration Statement; provided provided, however that the Company will not be required to (i) qualify generally to do business in any jurisdiction where in which it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where in which it is not then so subject;
(i) cooperate Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and sold, which certificates will not bearing bear 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;
(j) use its best efforts to cause Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States except as may be required solely as a consequence of the nature of such selling holder's business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(6Section 4(c)(vi) aboveor 4(c)(vii) hereof, prepare a supplement or posteffective post-effective amendment to the each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers Investors of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) Use its best efforts to cause all Registrable Securities covered by the such Registration Statement to be listed on each the NASDAQ Small Cap National Market or any other securities exchange exchange, if any, on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter Enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith (including those requested by the holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1i) make such representations and warranties to the holders of such Registrable Securities and the underwritersSecurities, if any, with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to such selling holders of Registrable Securities and each selling holder and of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters, including without limitation the matters referred to in clause (i) above; (3iii) use its best efforts to obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to the each selling holders holder of Registrable Securities and the underwriters, if anySecurities, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5iv) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, Special Counsel to evidence the continued validity of the representations and warranties of the Company and its subsidiaries made pursuant to clause (i) above and to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other similar agreement entered into by the Company. The above shall foregoing actions will be done at taken in connection with each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(on) make Make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationSecurities being sold, and Special Counsel or any attorney or accountant retained by the sellers or underwritersuch selling holders, all financial and other records, pertinent corporate documents and properties of the CompanyCompany and its subsidiaries, and cause the Company's officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by the Company in writing as confidential shall at the time of delivery of such records, information or documents will be kept confidential by such Persons persons unless (i) such records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of such records, information or documents is required by court or administrative orderorder or is necessary to respond to inquires of regulatory authorities, or (iii) disclosure of such records, information or documents, in the opinion of counsel to such person, is otherwise required by law (including without limitation pursuant to the requirements of the Securities Act);
(po) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act, ) no later than 45 calendar days after the end of any 12-month period (or 90 days, calendar days after the end of any 12-month period if such period is a fiscal year) (1) commencing at on the end first day of any the first fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) 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 a Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestperiod. 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 Registrable Securities as the Company may may, from time to time time, reasonably request in writingwriting and the Company may exclude from such registration the Registrable Securities of any seller who unreasonably fails to furnish such information within five days after receiving such request. Each holder of Registrable Securities agrees will be deemed to have agreed by virtue of its acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 6(k4(c)(ii), 4(c)(iii), 4(c)(v), 4(c)(vi) or 4(c)(vii) hereof, such holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k4(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in the such Prospectus, 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 such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall period prescribed in Section 3(a) hereof will be extended by the number of days during the time period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received (x) the copies of the supplemented or amended prospectus Prospectus contemplated by Section 6(k4(k) hereof or (y) the Advice.
Appears in 2 contracts
Sources: Registration Rights Agreement (Frisby Technologies Inc), Registration Rights Agreement (Frisby Technologies Inc)
Registration Procedures. In connection with (a) If and whenever the Company's Company is required to effect the registration obligations of any Registrable Securities pursuant to Section 3 hereofthis Agreement, the Company will shall use its reasonable best efforts to effect such registration to permit and facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable, and pursuant thereto the Company will shall as expeditiously as possible:
(ai) prepare and file with the SEC, as soon as practicable, SEC (within thirty (30) days after the date on which the Company has given Holders notice of any request for Demand Registration) a Registration Statement or Registration Statements on any appropriate form under the Securities Actwith respect to such Registrable Securities, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include make all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with (including Financial Industry Regulatory Authority filings) in connection therewith and thereafter and (if the NASD, and Registration Statement is not automatically effective upon filing) use its reasonable best efforts to cause such Registration Statement to become effective; provided that that, before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433), the Company will furnish to the holders of the Registrable Securities covered by Holders for such Registration Statement and the underwriters, if any, registration copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents will be subject to the reasonable review of such holders and underwriterscounsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, and give the Holders participating in such registration an opportunity to comment on such documents and keep such Holders reasonably informed as to the registration process; provided, further, that if registration at the time would require the inclusion of pro forma financial or acquired business historical financial information, which requirement the Board determines the Company will not file any is reasonably unable to comply with, then the Company may defer the filing of the Registration Statement or amendment thereto or any Prospectus or any supplement thereto that is required to which effect the holders applicable registration for a reasonable period of a majority of the Registrable Securities covered by time to compile such Registration Statement or the underwriters, if any, shall reasonably objectinformation;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the any Registration Statement as may be necessary to keep the such Registration Statement effective for a period of either (A) not less than ninety (90) days or, if such Registration Statement relates to an Underwritten Offering in the applicable periodcase of a Demand Registration, such longer period as in the opinion of counsel for the managing underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or the maximum period of time permitted by the Securities Act in the case of a Shelf Registration Statement, or (B) such shorter period which will terminate ending when all of the Registrable Securities covered by such Registration Statement have been sold; cause disposed of (but in any event not before the Prospectus to be supplemented by expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ) and (ii) 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 Statement;
(iii) furnish to each Selling Holder and the applicable period underwriters such number of copies, without charge, of any Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such other documents as such persons may reasonably request from time to time in accordance with order to facilitate the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders disposition of the Registrable Securities covered thereby not being able to sell owned by such Registrable Securities during that period unless such action is required under applicable lawSelling Holder; provided that, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition before amending or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by supplementing any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating Company shall furnish to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed Holders a copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any such proposed amendment or supplement thereto as and not file any such Persons may proposed amendment or supplement to which any Selling Holder reasonably request; the objects. The Company hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the selling holders Selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any such amendment or supplement thereto;
(hiv) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such any Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller Selling Holder, and the managing underwriters, if any reasonably request, use its reasonable best efforts to keep each such registration or underwriter reasonably requests in writing qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or and things that may be necessary or reasonably advisable to enable such Selling Holder and each underwriter, if any, to consummate the disposition of the seller’s Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdictions; provided that the Company will not be required to (i) qualify generally to do business in any such jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any jurisdiction where it is not then so qualified subject or to take any action which would subject it (iii) consent to general service of process in any such jurisdiction where it is not then so subjectsubject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(iv) during any time when a prospectus is required to be delivered under the Securities Act, promptly notify each Selling Holder upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made and, as promptly as practicable, prepare and furnish to such Selling Holders a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(vi) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement,
(vii) cooperate with the selling holders of Registrable Securities Holders and the any managing underwriters, if any, underwriter(s) to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; sold, and enable certificates for such Registrable Securities to be in issued for such denominations number of shares and registered in such names as the Holders and any managing underwriters underwriter(s) may request at least two business days prior to any sale of Registrable Securities to the underwritersreasonably request;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(lviii) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed or, if no similar securities issued by the Company are then listed on any securities exchange, use its reasonable best efforts to cause all such Registrable Securities to be listed on the Nasdaq Global Select Market;
(ix) promptly notify each Selling Holder (i) when the Registration Statement, any prospectus supplement or any post-effective amendment to the Registration Statement has become effective (ii) of any written comments by the SEC or any request by the SEC for amendments or supplements to such Registration Statement or to amend or to supplement any prospectus contained 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 or threatening of any proceedings for any of such purposes, (iv) the removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension, (v) if at the time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3(a)(xiii) below cease to be true and correct and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of such Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;
(x) make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to the applicable Registration Statement and any attorney, accountant or other agent retained by any such Selling Holder or underwriter all financial and other records, pertinent corporate documents and documents relating to the business of the Company reasonably requested by such Selling Holder, cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Selling Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement and make senior management of the Company available for customary due diligence and drafting activity; provided that any such Person gaining access to information or personnel pursuant to this Section 3(a)(x) shall (i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business and (ii) agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such person is notified, unless (A) the release of such information is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (B) the release of such information, in the opinion of such person, is required to be released by law or applicable legal process, (C) such information is or becomes publicly known without a breach of this Agreement, (D) such information is or becomes available to such person on a non-confidential basis from a source other than the Company or (E) such information is independently developed by such person. In the case of a proposed disclosure pursuant to (A) or (B) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the holders Company, assist the Company in seeking to prevent or limit the proposed disclosure;
(xi) in the case of an underwritten offering, promptly incorporate in a majority prospectus supplement or post-effective amendment such information as the managing underwriters or any Selling Holder reasonably requests to be included therein, the purchase price being paid therefor by the underwriters and any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(xii) reasonably cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities or and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority;
(xiii) in the case of an underwritten offering, enter into such customary agreements (including underwriting agreements with customary provisions in such forms as may be requested by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as the Selling Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and Securities;
(xiv) in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is case of an underwritten registration (1) offering, make such representations and warranties senior management of the Company available to assist to the holders extent reasonably requested by the managing underwriters of any Underwritten Offering to be made pursuant to such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth registration in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority marketing of the Registrable Securities being soldto be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in the Underwritten Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary registered offering of its Common Stock
(xv) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; use reasonable best efforts to: (3a) obtain "cold comfort" letters and updates thereof from the Company's all consents of independent certified public accountants required to be included in the Registration Statement and (b) in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the selling holders underwriters and to the Selling Holders, dated the date of Registrable Securities the underwriting agreement for such offering and the underwritersdate of each closing under the underwriting agreement for such offering, if any, such letters to be signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered in "cold comfort" by comfort letters by as the underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders or Holders of a majority of the Registrable Securities being sold in such offering, as applicable, reasonably request;
(xvi) use reasonable best efforts to obtain: (a) all legal opinions from Company Outside Counsel (or internal counsel) required to be included in the Registration Statement and (b) in connection with each closing of a sale of Registrable Securities, legal opinions from Company Outside Counsel (or internal counsel if acceptable to the managing underwriters), if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and addressed to the extent required thereunder;
(o) make available for inspection by a representative underwriters, dated as of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure date of such recordsclosing, information or documents is required by court or administrative order;
(p) otherwise use its best efforts with respect to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; andeach amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature;
(qb) promptly prior As a condition precedent to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing obligations of the Registration Statement)Company to file any registration statement covering Registrable Securities, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller Holder of Registrable Securities as to which any registration is being effected to shall furnish to the Company with such information regarding such Holder and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Holder agrees by acquisition of such the Registrable Securities that, that (i) upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof3(a)(v), such holder will Holder shall forthwith discontinue its disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 deliver pursuant 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 registration statement relating to such Registrable Securities current at the time of until such Holder’s receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k3(a)(v); (ii) hereof or upon receipt of any notice from the AdviceCompany of the happening of any event of the kind described in clause (A) of Section 3(a)(ix), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement until such Holder’s receipt of the notice described in clause (iv) of Section 3(a)(ix); and (iii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (B) of Section 3(a)(xi), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement in the applicable state jurisdiction(s) until such Holder’s receipt of the notice described in clause (C) of Section 3(a)(ix). The length of time that any registration statement is required to remain effective shall be extended by any period of time that such registration statement is unavailable for use pursuant to this paragraph, provided in no event shall any registration statement be required to remain effective after the date on which all Registrable Securities cease to be Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Enact Holdings, Inc.), Registration Rights Agreement (Genworth Mortgage Holdings, Inc.)
Registration Procedures. In connection with Whenever the Company's registration obligations Holders request that any Registrable Common Stock be registered pursuant to Section 3 hereofthis Agreement or the Mandatory Shelf Registration is required to be provided, the Company will shall use its reasonable best efforts to effect such and maintain the registration to permit and the sale of such Registrable Securities Common Stock in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities Common Stock in accordance with the intended method or methods filing requirements set forth in paragraphs (a) and (b) of distribution thereof and shall include all financial statements required by the SEC Section 2 hereof, subject to be filed therewith, cooperate and assist in any filings required to be made with the NASDSection 2(c) hereof, and use its best efforts to cause any such Registration Statement to become effectiveeffective as soon as practicable thereafter; provided that and before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders Holders of the Registrable Securities Common Stock covered by such Registration Statement and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, which including, if requested by such Holders, documents will be subject incorporated by reference in the Prospectus and, if requested by such Holders, the exhibits incorporated or deemed incorporated by reference, and such Holders shall have the opportunity to the reasonable review of object to any information pertaining to such holders and underwriters, Holders that is contained therein and the Company will not file make the corrections reasonably requested by such Holders with respect to such information prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectthereto;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for as is necessary to complete the applicable period, or such shorter period which will terminate when all Registrable Securities distribution of the securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(c) notify the selling holders furnish to each seller of Registrable Securities Common Stock (without charge) such number of copies of such Registration. Statement, each amendment and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) of the happening of any event which makes any statement made in the Registration Statementthereto, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes included in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the such Registration Statement at the earliest possible moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectusProspectus) and any amendment or supplement thereto such other documents as such Persons seller may reasonably request; request in order to facilitate the disposition of the Registrable Common Stock owned by such seller, and the Company consents to the use of the Prospectus or any amendment or supplement thereto such Prospectus, including each preliminary Prospectus, by each of the selling holders Holders of Registrable Securities and the underwriters, if anyCommon Stock, in connection with the offering and sale of the Registrable Securities Common Stock covered by the Prospectus or any amendment or supplement theretosuch Prospectus;
(hd) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale Common Stock under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered Common Stock owned by the Registration Statement; provided such seller (provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph (d), (ii) subject itself to taxation in any such jurisdiction or to take any action which would subject it (iii) consent to general service of process in any such jurisdiction where it unless the Company is not then so subjectalready subject to such service);
(ie) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the notify each seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon Common Stock, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event contemplated by paragraph (c)(6) aboveas a result of which the Registration Statement, including the Prospectus contained therein, contains an untrue statement of a material fact or omits any fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any such seller, the Company shall prepare a supplement or posteffective amendment to the such Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable SecuritiesCommon Stock, the such Prospectus will shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lf) cause all Registrable Securities covered by in the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders case of a majority of such Registrable Securities or the managing underwritersan Underwritten Offering, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(ni) enter into such customary agreements (including an underwriting agreementagreements in customary form), (ii) and take all such other actions in connection therewith as the Holders of a majority of number of shares of the Registrable Common Stock being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Common Stock, including making executive officers of the Company available to participate in, and cause them to cooperate with the underwriters in such connectionconnection with, whether or not an underwriting agreement is entered into "road-show" and whether or not other customary marketing activities (including one-on-one meetings with prospective purchasers of the registration is an underwritten registration Registrable Common Stock), (1iii) make such representations and warranties cause to be delivered to the holders of such Registrable Securities underwriters and the underwriterssellers, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in customary form, scope covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriters may request and substance) shall be reasonably satisfactory addressed to the underwriters and the sellers and (iv) to the extent requested by the managing underwriters of any such Underwritten Offering, cause to be delivered to such managing underwriters, if any, and the holders of a majority customary lock-up agreements of the Registrable Securities being sold) addressed Company and its officers and directors, in each case for a period not to each selling holder exceed 30 days plus any extensions necessary to comply with the rules and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters regulations of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered intoFinancial Industry Regulatory Authority, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderInc.;
(og) subject to receipt of reasonably acceptable confidentiality agreements, make available available, for inspection by a representative of the holders a seller of a majority of the Registrable SecuritiesCommon Stock, any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney attorney, accountant or accountant other agent retained by the sellers 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 and employees independent accountants to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that any records, information or documents that are designated Registration Statement;
(h) to use its reasonable best efforts to cause all such Registrable Common Stock to be listed on each securities exchange on which securities of the same class issued by the Company in writing as confidential shall be kept confidential are then listed or, if no such similar securities are then listed, on a national securities exchange selected by such Persons unless disclosure of such records, information or documents is required by court or administrative orderthe Company;
(pi) otherwise use its best efforts provide a transfer agent and registrar for all such Registrable Common Stock and provide a CUSIP number for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(j) if requested, cause to comply with all be delivered, immediately prior to the effectiveness of the Registration Statement (and, in the case of an Underwritten Offering, at the time of delivery of any Registrable Common Stock sold pursuant thereto), letters from the Company's independent certified public accountants addressed to each selling Holder (unless such selling Holder does not provide to such accountants the appropriate representation letter required by rules governing the accounting profession) and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the SECindependent certified public accountants delivered in connection with primary or secondary underwritten public offerings, and as the case may be;
(k) make generally available to its security holdersstockholders a consolidated earnings statement (which need not be audited) for the twelve (12) months (or, if applicable, such shorter period that the Company has been in existence) beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statements satisfying statement shall satisfy the provisions requirements of an earnings statement under Section 11(a) of the Securities Act, no later than 45 days after Act and Rule 158 thereunder;
(l) cooperate with each selling Holder of Registrable Common Stock and each underwriter participating in the end disposition of such Registrable Common Stock and their respective counsel in connection with any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold filings required to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning be made with the first month Financial Industry Regulatory Authority, Inc. and make reasonably available its employees and personnel and otherwise provide reasonable assistance to the underwriters (taking into account the needs of the Company's first fiscal quarter commencing after businesses and the requirements of the marketing process) in the marketing of Registrable Common Stock in any Underwritten Offering;
(m) use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Common Stock for sale in any jurisdiction and, if such an order or suspension is issued, to use reasonable efforts to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify each seller of Registrable Common Stock being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose;
(n) promptly notify each seller of Registrable Common Stock and the underwriter or underwriters, if any:
(i) when the Registration Statement, pre-effective date amendment, the Prospectus or any Prospectus supplement or 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;
(ii) of any written request by the SEC for amendments or supplements to the Registration Statement or Prospectus;
(iii) 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, which statements shall cover said 12-month periods; and
(qiv) promptly prior of the receipt by the Company of any notification with respect to the filing suspension of the qualification of any document which is Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction;
(o) at all times after the Company has filed a registration statement with the SEC pursuant to the requirements of either the Securities Act or the Exchange Act, the Company shall file all reports and other documents required to be incorporated filed by reference into it under the Registration Statement or Securities Act and the Prospectus (after initial filing of Exchange Act and the Registration Statement)rules and regulations adopted by the SEC thereunder, provide copies of and take such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof further action as counsel for such selling holders or underwriters any Holders may reasonably request. The , all to the extent required to enable such Holders to be eligible to sell Registrable Common Stock pursuant to Rule 144; and
(p) as a condition to being included in any Registration Statement, the Company may require each seller of Registrable Securities Common Stock as to which any registration is being effected to furnish to the Company such any other information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder seller of Registrable Securities Common Stock agrees by acquisition of such having its stock treated as Registrable Securities Common Stock hereunder that, upon receipt of any notice from the Company of the happening of any event as a result of which the kind described Prospectus included in Section 6(k) hereofsuch Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a "Suspension Notice"), such holder seller will forthwith discontinue disposition of Registrable Securities Common Stock until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it seller is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, resumed and has received copies of any additional is furnished with a supplemented or supplemental filings which are incorporated amended Prospectus as contemplated by reference in the ProspectusSection 4(e) hereof, and, if so directed by the Company, such holder seller, at its option, either will destroy or deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holderseller's possession, of the Prospectus covering such Registrable Securities Common Stock current at the time of receipt of such notice; provided, however, that such postponement of sales of Registrable Common Stock by the Holders shall not exceed thirty (30) days in the aggregate in any three-month period or ninety (90) days in the aggregate in any one year except as a result of a refusal by the SEC to declare any post-effective amendment to the Registration Statement effective after the Company has used all commercially reasonable efforts to cause such post-effective amendment to be declared effective, in which case the Company shall terminate the suspension of the use of the Registration Statement immediately following the effective date of the post-effective amendment. In the event If the Company shall give any such noticenotice to suspend the disposition of Registrable Common Stock pursuant to a Prospectus, the Company shall extend the period of time periods regarding during which the maintenance of such Company is required to maintain the Registration Statement shall be extended effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each such seller either is advised by the Company that the use of Registrable Securities covered by such Registration Statement shall have received the Prospectus may be resumed or receives the copies of the supplemented or amended prospectus contemplated by Section 6(kProspectus. In any event, the Company shall not be entitled to deliver more than three (3) hereof or the AdviceSuspension Notices in any one year.
Appears in 2 contracts
Sources: Registration Rights Agreement (Javelin Mortgage Investment Corp.), Registration Rights Agreement (Javelin Mortgage Investment Corp.)
Registration Procedures. In (i) Whenever the Company shall file a Registration Statement pursuant hereto, the Company shall (A) thereafter, for such period of time as shall be required in connection with the Company's registration obligations pursuant to Section 3 hereoftransactions contemplated thereby and permitted by applicable rules, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofregulations and administrative practice, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments and supplements thereto or to the prospectus contained therein and all filings under the Securities Exchange Act of 1934 that are necessary or appropriate so that neither the Registration Statement as may be necessary nor any related prospectus shall contain any material misstatement or omission relative to keep the Company or any of its assets or its business or affairs and so that the Registration Statement effective for the applicable period, or and such shorter period which prospectus will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 otherwise comply with all applicable legal requirements, subject to the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
Paragraph 2(b) (ciii) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writingabove, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fB) furnish to each selling holder the Selling Holders of the registered Registrable Securities and each managing underwriter, without charge, at least one signed copy such number of copies of the Registration Statement and any related preliminary prospectus, prospectus, 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons Selling Holders reasonably may request, and (C) take all action that may be necessary under the securities or Blue Sky laws of any state and as reasonably request; may be requested to permit 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 connection with the public offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Registered Securities covered by the Registration Statement; provided provided, however, that in no event shall the Company will not be required obligated to qualify generally to do business in any jurisdiction where it is not then so now qualified or to take any action which would subject it to general service of process in suits, other than those arising out of the offering or sale of the Registrable Securities, in any such jurisdiction where it is not then so now subject;
(i) cooperate . In connection with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities the Company shall deliver to such Selling Holders and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into any underwriters such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionindemnities, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriterscontribution agreements, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel and letters of independent public accountants as are then customarily given to underwriters of registered public offerings and selling security holders. The underwriters and such Selling Holders shall deliver to the Company and updates thereof (which counsel such indemnities, contribution agreements and opinions as are then customarily given to issuers of registered public offerings.
(ii) Anything in form, scope and substance) shall be reasonably satisfactory this Agreement to the managing underwriterscontrary notwithstanding, if any, and the holders of Company shall not be obligated to file a majority Registration Statement unless the Selling Holders of the Registrable Securities being sold) addressed registered shall have furnished the Company in writing all information with respect to such Selling Holders, the Registrable Securities held by such Selling Holders requested to be so included, the transaction or transactions which such Selling Holders contemplate and each selling holder and the underwritersunderwriter, if any, covering who will act for such Selling Holders in connection therewith, that any law, rule or regulation requires to be disclosed therein.
(iii) The Company covenants that it will file the matters customarily covered reports required to be filed by it under the Securities Exchange Act of 1934, as in opinions effect from time to time, and the rules and regulations adopted by the Securities and Exchange Commission thereunder, and will deliver to Masco at its request a written statement affirming that it has complied with such requirements.
(iv) Whenever a Registration Statement is requested with respect to Subordinated Debentures, the Company will enter into an indenture on substantially similar terms and conditions (but not materially inconsistent with the terms of such Subordinated Debentures) as those contained in underwritten offerings the Indenture dated as of November 1, 1986 between the Company and such Morg▇▇ ▇▇▇ranty Trust Company of New York. The trustee designated by the Company to act as trustee under the Indenture shall be a bank or trust company or national banking association which has a combined capital and surplus in excess of $50,000,000.
(v) The Company will, at it own expense, take whatever action is necessary to cause all Registrable Securities registered pursuant to these registration rights to be listed on a national securities exchange or to be included for quotation in the over-the-counter market as reported by the National Association of Securities Dealers Automated Quotation System or similar organization.
(vi) All expenses (other matters as may be reasonably requested by such holders than fees (including underwriters' discounts and underwriters; (3commissions) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed expenses of any underwriters and counsel to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters Selling Holders) in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same registrations undertaken pursuant hereto shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into borne by the Company. The above , provided, however, that if Masco withdraws or abandons its request, then Masco shall reimburse the Company for all expenses reasonably incurred by the Company in complying with such request.
(vii) Masco shall be done at each closing under such underwriting deemed to be the representative of all Selling Holders, with full authority to select a managing underwriter, withdraw or similar agreement or as abandon the Registration Statement, and to the extent required thereunder;make comparable decisions on behalf of all Selling Holders after reasonable consultation therewith.
(oviii) The Company will make available for inspection by a representative of the holders of a majority of the Registrable Securitiesany Selling Holder, any underwriter participating in any disposition pursuant to such registration, a Registration Statement and any attorney attorney, accountant or accountant other professional retained by any Selling Holder or any such underwriter (collectively, the sellers or underwriter"Inspectors"), all financial and other records, pertinent corporate documents and properties of the CompanyCompany (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 reasonably requested by any such representative, underwriter, attorney or accountant Inspectors in connection with such registration; provided that any recordsregistration statement. Records which the Company determines, information or documents that in good faith, to be confidential and which it notifies the Inspectors are designated confidential shall not be disclosed by the Company in writing as confidential shall be kept confidential by such Persons Inspectors unless (i) the disclosure of such records, information Records is necessary to avoid or documents correct a misstatement or omission in such Registration Statement or (ii) the release of such Records is required by ordered pursuant to a subpoena or other order from a court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules of competent jurisdiction. Information obtained as a result of such inspections shall be deemed confidential and regulations shall not be used as the basis for any market transactions in the securities of the SEC, Company unless and make until such is made generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writingpublic. Each holder of Registrable Securities agrees by acquisition Selling Holder of such Registrable Securities thatwill, upon receipt learning that disclosure of any such Records is sought in a court of competent jurisdiction, give notice from to the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 allow the Company, such holder will deliver at its expense, to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, undertake appropriate action to prevent disclosure 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceRecords deemed confidential.
Appears in 2 contracts
Sources: Registration Agreement (Mascotech Inc), Registration Agreement (Masco Corp /De/)
Registration Procedures. (a) In connection with the Company's registration obligations pursuant to Section 3 hereoffiling by the Company of a Demand Registration Statement, the Company will shall furnish to Torchmark as many copies of the prospectus, including each preliminary prospectus, in conformity with the requirements of the Securities Act as Torchmark shall reasonably request for the purpose of effecting the plan of distribution set forth therein.
(b) The Company shall use its best efforts to effect such registration to permit register or qualify the sale shares of Class A Common Stock and/or Class B Common Stock covered by a Demand Registration Statement under the securities laws of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will states as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Torchmark shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable periodrequest; provided, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplementhowever, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; that the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten this paragraph (or best efforts underwrittenb) 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally as a foreign corporation or execute a general consent 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 jurisdiction.
(c) If the Company has delivered preliminary or final prospectuses to Torchmark and after having done so the prospectus is amended to comply with the requirements of the Securities Act, the Company shall promptly notify Torchmark and, if requested by the Company, Torchmark shall immediately return all prospectuses to the Company. The Company shall promptly provide Torchmark with revised prospectuses.
(d) At the request of Torchmark, the Company shall sign an underwriting agreement in customary form with managing underwriter selected by Torchmark and reasonably satisfactory to the Company, and shall cooperate with such jurisdiction where it is not then so subject;managing underwriter in all reasonable respects to facilitate the distribution contemplated by Torchmark, including without limitation making available the books, records and personnel of the Company for the purpose of the underwriter's "due diligence" and providing customary legal opinions and auditors' comfort letters.
(e) The Offering Expenses incurred in complying with this Section 5.3 shall be paid as follows:
(i) cooperate Offering Expenses in connection with a Demand Registration Statement shall be paid by Torchmark; provided, that in the selling holders event any shares of Registrable Securities the Company's stock are included in a Demand Registration Statement in addition to the shares of Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group, the Company shall pay its prorata portion of the Offering Expenses equal to the Offering Expenses multiplied by a fraction, the numerator of which is the number of any shares included in the Demand Registration Statement other than the shares held by Torchmark or any other member of the Torchmark Group and the managing underwritersdenominator of which is the total number of shares included in the Demand Registration Statement; and
(ii) Offering Expenses in connection with a Company Registration Statement (as defined below) shall be paid by the Company; provided, if anythat in the event Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group is included in the Company Registration Statement, Torchmark shall pay its prorata portion of the Offering Expenses equal to facilitate the timely preparation Offering Expenses multiplied by a fraction, the numerator of which is the number of such Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group and delivery included in the Company Registration Statement and the denominator of certificates representing Registrable Securities which is the total number of shares included in the Company Registration Statement.
(f) Prior to be sold March 31, 2002, each time the Company proposes to register any of its securities (except with respect to registration statements on Form S-4 or Form S-8 or another form available for registration of securities other than for sale to the public for cash), whether or not for sale for its own account, which is in whole or in part, an underwritten public offering (a "Company Registration Statement"), it will give prompt written notice to ------------------------------ Torchmark of its intention to do so 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 of Torchmark's rights under this Section 5.3(f). Torchmark may request at least two business within thirty (30) days prior after receipt of any such notice to include in the Company Registration Statement some or any sale portion of Registrable Securities to the underwriters;
(j) shares of Class A Common Stock or Class B Common Stock then held by Torchmark or any other member of the Torchmark Group. The Company shall use its best efforts to cause the Registrable Securities covered by the applicable Company Registration Statement to include all shares of Class A Common Stock and/or Class B Common Stock that Torchmark requested to be registered with or approved by such other governmental agencies or authorities as included; provided, however, the number of shares of Class A Common Stock and/or Class B Common Stock Torchmark requested be included in the Company Registration Statement may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
reduced (k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file pro rata among Torchmark and any other required document stockholder with similar registration rights based on the number of shares so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement requested to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4registered) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative that the managing underwriter shall be of the holders of a majority opinion that such inclusion would adversely affect the marketing of the Registrable Securities, any underwriter participating securities to be sold. Torchmark's exercise of its right under this Section 5.3(f) to include shares in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall not be extended by the number of days during the period from and including the date of the giving of such notice pursuant counted against Torchmark's right to Section 6(c)(6) hereof to 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(k) hereof or the Advicerequest three registrations.
Appears in 1 contract
Sources: Public Offering and Separation Agreement (Waddell & Reed Financial Inc)
Registration Procedures. In connection with any registration of Registrable Shares under the Company's registration obligations Securities Act pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts consult with each Holder whose equity interest is to effect be included in any such registration concerning the form of underwriting agreement, shall provide to permit such Holder the form of underwriting agreement prior to the Company’s execution thereof and shall provide to such Holder and its representatives such other documents (including comments by the Commission on the Registration Statement) as such Holder shall reasonably request in connection with its participation in such registration. The Company will furnish each Holder whose Registrable Shares are registered thereunder and each underwriter, if any, with a copy of the Registration Statement and all amendments thereto and will supply each such Holder and each underwriter, if any, with copies of any prospectus included therein (including a preliminary prospectus and all amendments and supplements thereto), in such quantities as may be reasonably necessary for the purposes of the proposed sale or distribution covered by such registration. The Company shall not, however, be required to maintain the Registration Statement effective or to supply copies of a prospectus for a period beyond ninety (90) days after the effective date of such Registrable Securities in accordance Registration Statement (or such longer period as is otherwise set forth herein or agreed to by the Company) and, at the end of such period, the Company may deregister any securities covered by such Registration Statement and not then sold or distributed. In the event that the Company prepares and files with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements registration statement on any appropriate form under the Securities Act, which form shall be available Act (a “Registration Statement”) providing for the sale of Registrable Shares held by any Holder pursuant to its obligations under this Section 1, the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before Company will:
(i) upon filing a Registration Statement or Prospectus any prospectus related thereto (a “Prospectus”) or any amendments or supplements thereto, the Company will furnish to the holders of the Holders whose Registrable Securities Shares are covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectdocuments;
(bii) prepare and file with the SEC Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter ninety (90) day period which will terminate when all Registrable Securities covered by such Registration Statement have been soldreferenced in Section 1(e); cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and and, comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the such Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(ciii) promptly notify the selling holders of Registrable Securities Holders and the managing underwriters, if any, promptly, and (if requested by any such PersonPerson or entity) confirm such advice in writing, (1A) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any request by the SEC Commission or any state securities commission for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3C) of the issuance by the Commission or any state securities commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose purpose, and (6E) of the happening existence of any event fact which makes any statement made results in the a Registration Statement, the a Prospectus or any document incorporated therein by reference containing an untrue statement of a material fact or which requires the making of any changes in the Registration Statement, the Prospectus omitting to state a material fact required to be stated therein or any document incorporated therein by reference in order necessary to make the statements therein not misleading;
(div) make every use its commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible momentStatement;
(ev) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringHolder, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and or the holders of Holders holding a majority of the Registrable Securities Shares being sold by Holders agree should be included therein relating to the plan sale of distribution with respect to such Registrable SecuritiesShares, including, without limitation, limitation information with respect to the number amount of Registrable Securities Shares being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities Shares to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fvi) furnish to each selling holder of Registrable Securities such Holder and each managing underwriter, without charge, underwriter at least one signed copy of the 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);
(gvii) deliver to each selling holder of Registrable Securities such Holders and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons or entities may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hviii) prior to any public offering Public Sale of Registrable SecuritiesShares, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration cause to be registered or qualification of qualified such Registrable Securities Shares for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any seller Holder or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities Shares covered by the applicable Registration Statement; provided provided, however, 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 or taxation in any such jurisdiction where it is not then so subject;
(iix) cooperate with the selling holders of Registrable Securities Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities Shares to be sold pursuant to such Registration Statement and not bearing any restrictive legends; , and enable such Registrable Securities Shares to be in such denominations and registered in such names as the managing underwriters may request at least two business days (2) Business Days prior to any sale of Registrable Securities Shares to the underwriters;
(jx) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
any fact described in clause (kiii)(E) upon the occurrence of any event contemplated by paragraph (c)(6) aboveabove exists, prepare a supplement or posteffective post-effective amendment to the applicable Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesShares being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lxi) cause all Registrable Securities Shares covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(mxii) provide and cause to be maintained a transfer agent and registrar for all such Registrable Shares covered by such registration statement not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(nxiii) enter into obtain an opinion from the Company’s counsel and a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope matters as are customarily made covered by issuers such opinions and “cold comfort” letters delivered to underwriters in primary underwritten offerings public offerings, which opinion and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) letter shall be reasonably satisfactory to the managing underwritersunderwriter, if any, and to the holders of Holders owning a majority in interest of the Registrable Securities Shares being sold) addressed registered in such offering, and furnish to each selling holder Holder participating in the offering and the underwritersto each underwriter, if any, covering the matters customarily covered in opinions requested in underwritten offerings a copy of such opinion and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants letter addressed to such Holder or underwriter;
(xiv) deliver promptly to each Holder participating in the selling holders of Registrable Securities offering and the underwriterseach underwriter, if any, such letters copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to be in customary form and covering matters of discussions with the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof Commission or its staff with respect to all parties the Registration Statement, other than those portions of any such correspondence and memoranda which contain information subject to be indemnified pursuant attorney-client privilege with respect to said Section; and (5) the Company, and, upon receipt of such confidentiality agreements as the Company shall deliver may reasonably request, make reasonably available for inspection by any seller of such documents and certificates as may be requested Registrable Shares covered by the holders of a majority of the Registrable Securities being sold and the managing underwriterssuch Registration Statement, by any underwriter, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition to be effected pursuant to such registrationregistration statement and by any attorney, and any attorney accountant or accountant other agent retained by the sellers 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 ’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;
(xv) provide a CUSIP number for all Registrable Shares included in such Registration Statement, not later than the effective date of the applicable Registration Statement;
(xvi) enter into such agreements (including an underwriting agreement in form reasonably satisfactory to the Company) and take all such other reasonable actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Shares;
(xvii) make available for inspection by a representative of the Holders the Registrable Shares being sold pursuant to such Registration Statement, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by such Holders or underwriter, all financial and other records, any pertinent corporate documents and properties of the Company reasonably requested by such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons or entities unless disclosure of such records, information or documents is required by court or administrative order;
(pxviii) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SECCommission and relevant state securities commissions, and make generally available to its security holders, earnings the Holders earning statements satisfying the provisions of Section 11(a12(a) of the Securities Act, Act no later than 45 forty-five (45) days after the end of any 12-month period (or 90 one-hundred and twenty (120) days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are Shares of such Holder is sold to underwriters in a firm or best efforts an underwritten offering, or (2) or, if not sold to underwriters in such an offering, beginning with the first month of the Company's ’s first fiscal quarter commencing after the effective date of the a Registration Statement, which statements shall cover said 12-month periods; and
(qxix) promptly prior take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition disposition 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceShares.
Appears in 1 contract
Sources: Registration Rights Agreement (Dayton Superior Corp)
Registration Procedures. In The following provisions shall be ----------------------- applicable to any registration pursuant to this Section 9:
(i) Buyer will use its reasonable efforts to cause any registration statement covering all or any portion of the Common Stock to become effective as promptly as possible and, if any stop order shall be issued by the SEC in connection therewith, to use its reasonable efforts to obtain the removal of such order. Each Seller agrees to cooperate in all respects with Buyer in effectuating the Companyforegoing. Following the effective date of any post-effective amendment or registration, Buyer shall, upon the request of any Seller, forthwith supply such number of registration statements, preliminary prospectuses and prospectuses meeting the requirements of the Securities Act and other documents deemed necessary by such Seller to permit such Seller to make a public distribution of all shares of Common Stock from time to time offered or sold by it. The obligations of Buyer hereunder with respect to the registration of the Common Stock are expressly conditioned on each Seller's furnishing to Buyer such appropriate information concerning the intentions of such Seller and the terms of such Seller's offering of such Common Stock as Buyer may reasonably request.
(ii) Buyer shall bear the entire cost and expense of any registration obligations of securities pursuant to Section 3 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:9.
(aiii) prepare Buyer shall indemnify and file with hold harmless each Seller and each underwriter, within the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under meaning of the Securities Act, which form shall be available who may purchase from or sell for the sale such Seller any Common Stock, from and against any and all losses, claims, damages and liabilities caused by any untrue statement of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist a material fact contained in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 registration statement under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendmentamendment to such registration statement, when the same has become effective, (2) of or any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease prospectus included therein required to be true and correct, (5) filed or furnished by reason of the receipt this Section 9 or caused by the Company of any notification with respect omission or alleged omission to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction state therein a material fact required to be stated therein or the initiation or threatening of any proceeding for such purpose and (6) 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 in order necessary to make the statements therein not misleading;
(d) make every reasonable effort , except insofar as such losses, claims damages or liabilities are caused by any such untrue statement or alleged untrue statement or omission or alleged omission based upon information furnished or required to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold be furnished in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating writing to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor Buyer by such underwriters and with respect to any other terms of the underwritten (Seller or best efforts 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to underwriter expressly for use therein, which indemnification shall include each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwritersperson, if any, without chargewho controls such Seller or any such underwriter within the meaning of the Securities Act and each officer, director, employee and agent of such Seller or such underwriter. Each Seller or underwriter or other person, as many copies of the Prospectus (including case may be, shall indemnify Buyer, its directors, each preliminary prospectus) officer signing the registration statement and any amendment or supplement thereto as such Persons may reasonably request; 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 underwritersperson, if any, in connection with who controls Buyer within the offering and sale meaning of the Registrable Securities covered Act, from and against any and all losses, claims, damages and liabilities caused by the Prospectus any untrue statement or alleged untrue statement of a material fact contained in any registration statement or any amendment prospectus required to be filed or supplement thereto;furnished by reason of this Section 9 or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or alleged untrue statement or omission based upon information furnished in writing to Buyer by such Seller or underwriter expressly for use therein.
(hiv) prior Buyer shall use reasonable good faith efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the all Common Stock covered by any registration or qualification of statement under such Registrable Securities for offer and sale under the other securities or blue sky laws of such jurisdictions as the Sellers shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any seller or underwriter other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the Seller to consummate the disposition in such jurisdictions of the Registrable Securities their Common Stock covered by the Registration Statement; provided such registration statement, except that the Company will Buyer shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where wherein it is would not then but for the requirements of this Section 9.4(iv) be obligated to be so qualified or to take any action which would subject it consent to general service of process or to the imposition of taxes on, or measured by, all or any part of the income of Buyer, in any such jurisdiction where it is not then so subject;jurisdiction.
(iv) cooperate with Buyer shall immediately notify the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities Sellers at any time when a prospectus relating thereto is required to be sold and not bearing delivered under the Securities Act, upon discovery that, or upon the happening of any restrictive legends; and enable such Registrable Securities event as a result of which, the prospectus included in any registration statement covering all or any part of the Common Stock, as then in effect, includes 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 under which they were made, and at the request of the Sellers promptly (but in no event later than 30 days after such denominations request) prepare and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities furnish to the underwriters;
(j) use its best efforts Sellers a reasonable number of copies of a supplement to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by an amendment of such other governmental agencies or authorities prospectus as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securitiessuch securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in the light of the circumstances then existing.
(lvi) cause all Registrable Securities covered by Buyer shall use its reasonable best efforts to qualify the Registration Statement to be listed Common Stock on each the principal national securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities Common Stock is admitted to trading or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offeringlisted, or (2) if not sold listed or admitted to underwriters in trading on such an offeringexchange, 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. on 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceNASDAQ Stock Market.
Appears in 1 contract
Sources: Acquisition Agreement (Intermedia Communications of Florida Inc)
Registration Procedures. In connection with the Company's registration obligations of any Registrable Securities pursuant to Section 3 2 hereof, the Company will use its best efforts to shall effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(ai) prepare Promptly upon request from any Holder of Registrable Securities, the Company will provide a form of Notice and Questionnaire, which must be completed and delivered by such Holder to the Company at least five Business Days before any intended distribution of Registrable Securities under the Shelf Registration Statement. To be named as a selling security holder in the Shelf Registration Statement when it first becomes effective, Holders must complete and deliver the Notice and Questionnaire in substantially the form of Appendix A to the Offering Memorandum dated October 22, 2003 with respect to the initial offering of the Securities before the effectiveness of the Shelf Registration Statement. If the Company receives from a Holder of Registrable Securities a completed Notice and Questionnaire, together with such other information as the Company may reasonably request, after the effectiveness of the Shelf Registration Statement, the Company will file an amendment to the Shelf Registration Statement, or a supplement to the related Prospectus, to permit the Holder to deliver a Prospectus to purchasers of Registrable Securities. Any Holder that does not complete and deliver a Notice and Questionnaire or provide such other information will not be named as a selling security holder in the Prospectus and will not be permitted to sell any Registrable Securities under the applicable Shelf Registration Statement.
(ii) Prepare and file with the SEC, as soon as practicableSEC on or prior to the Filing Date, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required as prescribed by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDSection 2 hereof, and to use its reasonable best efforts to cause such Registration Statement to become effective; effective and remain effective as provided that herein, provided that, before filing a any Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders shall upon written request from any registered Holder of the Registrable Securities (which in the case of Registrable Securities in the form of global certificates shall be The Depository Trust Company ("DTC")) to be covered by such Registration Statement Statement, furnish to and the underwriters, if any, afford such Holder a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file . Before filing any Registration Statement or amendment thereto or any Prospectus or any supplement amendments or supplements thereto to which the holders Company will consider any reasonable objections of the Holders of a majority of the in Registrable Securities covered by such Registration Statement or the underwriterstheir counsel, if any, shall reasonably object;.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration Statement, as the Registration Statement case may be, as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldEffectiveness Period (other than during a Blackout Period); cause the related Prospectus to be supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented as so amended or amended prospectus contemplated by Section 6(k) hereof or the Advicein such Prospectus as so supplemented.
Appears in 1 contract
Sources: Registration Rights Agreement (Grey Global Group Inc)
Registration Procedures. In connection with the Company's registration obligations of the Parent pursuant to and in accordance with Section 3 hereof2A or Section 2B hereof (and subject to the Parent's rights under Section 2A), the Company Parent will use its reasonable best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the Holders' intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Parent shall as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a SEC the Shelf Registration or the requisite Registration Statement or Registration Statements on any appropriate form to effect such registration under the Securities Act, which form shall be available Section 2B for the sale of the Registrable Securities on any form for which the Parent then qualifies or which the counsel for the Parent shall deem appropriate in accordance with the such Holders' intended method or methods of distribution thereof and shall include all financial statements required by the SEC and, subject to be filed therewithSection 2A(b), cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement to become effective; effective and remain effective as provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectherein;
(b) prepare and file with the SEC such amendments and (including post-effective amendments amendments) to such Registration Statement, and such supplements to the Registration Statement Prospectus, as may be necessary required by the rules, regulations or instructions applicable to keep the Registration Statement effective for Securities Act during the applicable period, period in accordance with the intended method or such shorter period which will terminate when all methods of disposition specified by the Holders owning any Registrable Securities covered by such Registration Statement Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that the Parent shall be deemed to have been sold; complied with this clause if it has complied with Rule 158 under the Securities Act), and 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 provided, that within a reasonable time before filing such Registration Statement or Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it under the provisions of Exchange Act), the Securities Act with respect Parent will furnish to the disposition of all securities Holders owning Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods Statement, and their counsel, for review and comment, copies of distribution by the sellers thereof set forth in such Registration Statement or supplement all documents required to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablefiled;
(c) notify the selling holders of Holders owning any Registrable Securities covered by such Registration Statement promptly and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the such Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC for amendments or supplements to the such Registration Statement or the related Prospectus or for additional informationinformation regarding such Holders, (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company Parent 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 purpose, and (6v) of the happening of any event which makes any statement made that in the Registration Statement, reasonable opinion of the Prospectus or any document incorporated therein by reference untrue or which Parent requires the making of any changes in the such a Registration Statement, the Prospectus or any document documents incorporated or deemed to be incorporated therein by reference in order so that they will not contain any untrue statement or a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(d) make every use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of such Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible momentqualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction in the United States;
(e) if requested by furnish to each of the managing underwriter or underwriters or a holder Holders disposing of Registrable Securities being sold in connection with an underwritten offeringcovered by such Registration Statement and counsel for such Holders, promptly incorporate in a Prospectus supplement or without charge, one conformed copy of such Registration Statement, as declared effective by the SEC, and of each post-effective amendment such information as the managing underwriters thereto, in each case, including financial statements 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters schedules and with respect to any other terms of the underwritten (all exhibits and reports incorporated or best efforts 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 notified of the matters deemed to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities therein by reference; and each managing underwriterdeliver, without charge, at least one signed copy such number of copies of the Registration Statement preliminary prospectus, any amended preliminary prospectus, each final Prospectus and any post-effective amendment or supplement thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to as each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons Holder may reasonably request; request in order to facilitate 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 connection with the offering and sale disposition of the Registrable Securities covered by such Registration Statement in conformity with the Prospectus or any amendment or supplement theretorequirements of the Securities Act;
(hf) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions in the United States as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions Holders disposing of the Registrable Securities covered by the such Registration StatementStatement shall reasonably request in writing; provided provided, however, that the Company will not Parent shall in no event be required to qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it is not then at the time so qualified or to take any action which would subject it execute or file a general consent to general service of process in any such jurisdiction where it has not theretofore done so or to take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then so subject;
(ig) cooperate with the selling holders of Registrable Securities and the managing underwritersexcept during any Delay Period, 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(63(c)(v) above, prepare promptly file a supplement or posteffective post-effective amendment to the such Registration Statement or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Registration Statement or 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 therein, in light of the circumstances under which they were made, not misleading;
(lh) use its reasonable best efforts to cause all Registrable Securities covered by the such Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwritersAmerican Stock Exchange, if anyInc.;
(mi) not later than on or before the effective date of the such Registration Statement, provide a CUSIP number the transfer agent of the Parent for all the Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary The Depository Trust Company;
(nj) if such offering is an underwritten offering, make available for inspection by any Holder disposing of Registrable Securities included in such Registration Statement, any underwriter of such offering, and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the "Inspectors"), all financial and other records and other information, pertinent corporate documents and properties of any of the Parent and its subsidiaries (collectively the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility; provided, however, that the Records that the Parent determines, in good faith, to be confidential shall not be disclosed to any Inspector unless (i) such Inspector signs a confidentiality agreement reasonably satisfactory to the Parent (which shall permit the disclosure of such Records in such Registration Statement or the related Prospectus if necessary to avoid or correct a material misstatement in or material omission from such Registration Statement or Prospectus), (ii) after consultation with counsel for the applicable Inspectors, the Holders and the Parent, the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (iii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, provided that each Holder shall, promptly after learning that disclosure of such Records is sought in a court having jurisdiction, give notice to the Parent and allow the Parent, at the Parent's expense, to undertake appropriate action to prevent disclosure of such Records; and
(k) if such offering is an underwritten offering, enter into such agreements (including an underwriting agreementagreement in form, scope and substance as is customary in underwritten offerings) and take all such other appropriate and reasonable actions requested by the Holders owning a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters) in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1i) make such representations and warranties use its reasonable best efforts to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company Parent and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwritersunderwriters and counsel to the Holders disposing of Registrable Securities), if any, and the holders of a majority of the Registrable Securities being sold) addressed to each Holder selling holder Registrable Securities covered by such Registration Statement and each of the underwriters, if any, covering underwriters as to the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested in underwritten offerings and such other matters as may be reasonably requested by such holders counsel and underwriters; , (3ii) use its reasonable best efforts to obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Parent (and, if necessary, any other independent certified public accountants of any subsidiary of the Parent or of any business acquired by the Parent for which financial statements and financial data are, or are required to be, included in such Registration Statement), addressed to the each Holder selling holders of Registrable Securities covered by such Registration Statement (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; , and (4iii) if requested and if an underwriting agreement is entered into, the same shall set forth in full the provide indemnification provisions and procedures of substantially to the effect set forth in Section 8 6 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement agreement, or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon Upon receipt of any notice from the Company Parent of the happening of any event of the kind described in Section 6(k3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(c)(v) hereof, such holder will each Holder shall (i) forthwith discontinue disposition of any Registrable Securities covered by such Registration Statement or Prospectus until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k3(g) hereof, or until it such Holder is advised in writing (the "Advice") by the Company Parent that the use of the applicable Prospectus may be resumed, and has received copies of any amended or supplemented Prospectus or any additional or supplemental filings which are incorporated incorporated, or deemed to be incorporated, by reference in the Prospectus, and, such Prospectus (such period during which disposition is discontinued being an "Interruption Period") and (ii) if so directed requested by the CompanyParent, such holder will deliver to the Company Parent (at the Company's expenseexpense of the Parent) all copiescopies then in its possession, other than permanent file copies then in such holder's its possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such noticerequest. In No Holder shall utilize any material other than the event applicable current preliminary prospectus or Prospectus in connection with the Company shall give any such notice, the time periods regarding the maintenance offering of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice Registrable Securities pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented 2A or amended prospectus contemplated by Section 6(k) hereof or the Advice2B hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Metromedia International Group Inc)
Registration Procedures. In connection with If and whenever the Company's Company is required by the provisions of this Warrant to use to effect the registration obligations pursuant to Section 3 hereofof any of the Registrable Shares under the Securities Act, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with furnish to the SEC, Registered Holder such number of copies as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form Registered Holder shall be available for the sale reasonably request of the Registrable Securities in accordance with the intended method or methods of distribution thereof prospectus, including a preliminary prospectus and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, in conformity with the Company will furnish to the holders requirements of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectAct;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause register or qualify the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities Shares covered by the Registration Statement to be listed on each under the securities exchange on which similar securities issued by laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company are then listed shall not be required in connection with this subsection 20(b) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(c) promptly notify the Registered Holder, if the Company has delivered preliminary or final prospectuses to the Registered Holder and after having done so, the prospectus is amended to comply with the requirements of the Securities Act and, if requested by the holders Company, the Registered Holder shall immediately cease making offers or sales of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of Shares under the Registration Statement, provide a CUSIP number for Statement and return all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order prospectuses to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of the revised prospectuses, the Registered Holder shall be done at each closing under such underwriting or similar agreement or as free to resume making offers and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority sales of the Registrable SecuritiesShares; and
(d) pay the expenses incurred by it in complying with its obligations under this Warrant in connection with registration rights, any underwriter participating in any disposition pursuant to such registrationincluding all registration and filing fees, exchange listing fees, expenses for the preparation of the Registration statement, prospectus and any attorney or accountant retained by the sellers or underwriteramendments and supplements thereto, all financial printing and other recordsphotocopy expenses, pertinent corporate documents fees and properties expenses of counsel for the Company, and cause fees and expenses of accountants for the Company's officers, directors and employees to supply all information reasonably requested but excluding: (i) selling commissions or underwriting discounts incurred by any such representative, underwriter, attorney or accountant the Registered Holder in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure sales of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into Shares under the Registration Statement or and (ii) the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities fees and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt expenses of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") counsel retained 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceRegistered Holder.
Appears in 1 contract
Sources: Warrant Agreement (Igi Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofof the Company under Sections 3, 4 and 5, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements with respect to such Registrable Securities on any appropriate registration form under adopted by the Securities ActSEC 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 or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use reasonable best efforts to cause such Registration Statement to become and remain effective; provided that before that, at least five Business Days prior to filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto, the Company will shall furnish to a single counsel selected by the holders Holders of a Majority of the Registrable Securities covered by included or to be included in such Registration Statement and the underwriters, if any, copies of all such documents Registration Statement or Prospectus (or amendment or supplement) as proposed to be filedfiled (including, upon the request of such counsel, documents to be incorporated by reference therein) which documents will shall be subject to the reasonable review and comments of such holders counsel and underwritersthe Holders of the Registrable Securities included or to be included in such Registration Statement during such five-Business-Day period, and the Company will shall not file any Registration Statement or amendment thereto or Statement, any Prospectus or any amendment or supplement thereto (or any such documents incorporated by reference) containing any statements with respect to any such Holder to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Holder shall reasonably objectobject in writing;
(b) prepare and file with the SEC such amendments and post-effective amendments to the such Registration Statement and such amendments and supplements to the Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the 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 the such Registration Statement effective for until the applicable period, or such shorter period earlier of (i) the date on which will terminate when all the Registrable Securities covered by such Registration Statement cease to be Registrable Securities or have been sold; sold or withdrawn and (ii) subject to Sections 9(e) and 9(k), (x) in the case of the Shelf Registration, until the third anniversary of the date of initial effectiveness of the Shelf Registration Statement, plus any Suspension Periods (which shall be added to such three-year period), or (y) in the case of a Registration Statement filed pursuant to Section 4 which does not contemplate an Underwritten Offering, for at least 120 days or (z) in the case of a Registration Statement filed pursuant to Section 4 which contemplates an Underwritten Offering, for at least 120 days plus such longer period (not to exceed 90 days after the 120th day) as, in the opinion of counsel for the underwriter or underwriters of such Underwritten Offering, is required by law for the delivery of a Prospectus in connection with the sale of Registrable Securities by an underwriter or dealer, and cause the Prospectus to be supplemented by any required Prospectus supplement, and 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 until such time as is specified in clause (i) or (ii) above, as the case may be;
(c) furnish to each Holder of such Registrable Securities such number of copies of such Registration Statement and of each amendment and post-effective amendment thereto, any Prospectus or Prospectus supplement and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in Section 10(b)) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(d) use reasonable 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 Holder shall reasonably request, and to do any and all other acts and things which may be reasonably necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder, except that the Company shall not be required for any such purpose to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 9(d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Holder 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 the applicable period referred to in accordance with Section 9(b), that the intended method Company has become aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of material fact or methods omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of distribution by the sellers thereof set forth circumstances then existing (the period during which the Holders are required in such case pursuant to Section 10(b) to refrain from effecting public sales or distributions of Registrable Securities referred to herein as a "Section 9(e) Period"), and prepare and furnish to such Holder, as soon as reasonably practicable, without charge to such Holder, a reasonable number of copies of an amendment to such Registration Statement or supplement to such related Prospectus as may be necessary so that, as thereafter delivered to the Prospectuspurchasers 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 that if the Company gives such notice, the Company shall not be deemed to have used its best efforts to keep a extend the period during which such Registration Statement shall be maintained effective during (including the applicable period if it voluntarily takes any action that would result periods referred to in selling holders Section 9(b)) by the number of days in the Section 9(e) Period;
(f) promptly notify each Holder of Registrable Securities covered thereby not being able to sell by such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Registration Statement at any time,
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, filed and, with respect to the Registration Statement or any post-effective amendment, when the same Registration Statement or such post-effective amendment has become effective, ;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission 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 that purpose, such purposes; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by of the Company of any written notification with respect to of 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 and purpose;
(6g) make available to its stockholders, as soon as reasonably practicable, an earnings statement which shall satisfy the provisions of Section 11(a) of the happening Securities Act, provided that the Company shall be deemed to have complied with this Section 9(g) if it has complied with Rule 158 under the Securities Act;
(h) if the 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 reasonable best efforts to obtain 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" letters and bring-downs thereof from the Company's independent certified public accountants addressed to the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by independent accountants in connection with Underwritten Offerings; and
(iv) deliver such documents and certificates as may be reasonably requested by the managing underwriters to evidence compliance with any event which makes any statement made customary conditions contained in the underwriting agreement;
(i) cooperate with the Holders of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing the securities to be sold under such Registration Statement, and enable such securities to be in such denominations and registered in such names as the Prospectus managing underwriter or any document incorporated therein by reference untrue underwriters or which requires the making of any changes in the Registration Statementagents, the Prospectus if any, or any document incorporated therein by reference in order to make the statements therein not misleadingsuch Holders, may request;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(ej) if reasonably requested by the managing underwriter or underwriters or a holder Holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriters and the holders Demand Holders of a majority Majority of the Registrable Securities being sold by all Demand Holders 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 number principal amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering Underwritten Offering of the Registrable Securities to be sold in such offering; offering and make all required filings of such Prospectus supplement or post-effective amendment as soon as upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fk) furnish to each selling holder in the event of Registrable Securities and each managing underwriter, without charge, at least one signed copy the issuance of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement and Statement, or of 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment order suspending or supplement thereto as such Persons may reasonably request; the Company consents to preventing the use of the any related Prospectus or suspending the qualification of any amendment or supplement thereto by each of the selling holders of Registrable Securities and included in the underwritersRegistration Statement for sale in any jurisdiction, if any, in connection with use reasonable best efforts to obtain at the offering and sale of earliest practicable time the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification withdrawal of such Registrable Securities for offer stop order or other order (the period between the issuance and sale under the securities withdrawal of any stop order or blue sky laws of such jurisdictions other order referred to herein as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementa "Section 9(k) Period"); provided that the Company shall extend the period during which such Registration Statement will not be required maintained effective (including the periods referred 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;
(iSection 9(b)) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable number of days in the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kSection 9(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleadingPeriod;
(l) use reasonable best efforts to cause all Registrable Securities Conversion Shares, Warrant Shares and Commitment Fee Shares covered by the such Registration Statement to be listed on each any securities exchange or automated quotation system on which similar securities issued by the Company Common Stock is then listed, if such Conversion Shares, Warrant Shares and Commitment Fee Shares are not already so listed and if such listing is then listed if requested by permitted under the holders of a majority rules of such Registrable Securities securities exchange or the managing underwriters, if anyautomated quotation system;
(m) in the case of an Underwritten Offering, cause the senior executive officers of the Company to participate in the customary "road show" presentations that may be reasonably requested by the lead managing underwriter in any such Underwritten Offering and otherwise to cooperate with and participate in customary selling efforts related thereto;
(n) upon the request of any Holder, promptly amend any Shelf Registration Statement or take such other action as may be necessary to de-register, remove or withdraw all or any portion of the Holder's Registrable Securities from a Shelf Registration Statement, as requested by such Holder;
(o) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and and, unless such Registrable Securities shall be registered in book-entry form, provide the applicable trustee(s) or transfer agent(s) agent and registrar for such Registrable Securities with printed certificates for the Registrable Securities Securities, which are certificates shall be in a form eligible for deposit with Depositary The Depository Trust Company;
(np) enter into such agreements (including an underwriting agreement) provide and take cause to be maintained a transfer agent and registrar for all such other actions in connection therewith in order to expedite or facilitate Registrable Securities covered by the disposition applicable Registration Statement from and after a date not later than the effective date of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Registration Statement;
(1q) make such representations available upon reasonable notice at reasonable times and warranties to for reasonable periods for inspection by one representative appointed by the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders Holders of a majority Majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the applicable Registration Statement, by any managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement underwriter or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter underwriters participating in any disposition Underwritten Offering to be effected pursuant to such registrationRegistration Statement, and by any attorney attorney, accountant or accountant other agent retained by the sellers such Holders or any such managing 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 during normal business hours to discuss the business of the Company and to supply all information reasonably requested by any such representative, underwriter, attorney Holders or accountant managing underwriter or agent thereof in connection with such registration; provided that any records, information or documents that are designated by the Company in writing Registration Statement as confidential shall be kept confidential by necessary to enable such Persons unless disclosure of such records, information or documents is required to exercise their due diligence responsibility (subject to the entry by court or administrative ordereach Person referred to in this Section 9(q) into customary confidentiality agreements in a form reasonably acceptable to the Company);
(pr) otherwise use its best efforts to comply with all applicable rules and regulations if requested in writing by Holders holding a Majority of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters included 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 prepare and file with the SEC amendments and post-effective amendments to such Registration Statement and amendments and supplements to the Prospectus used in connection with such Registration Statement as shall cover said 12be necessary to enable any transferee of Registrable Securities included in such Registration Statement who becomes a Holder under this Agreement to resell such Holder's Registrable Securities pursuant to such Registration Statement, to the extent that such amendments, post-month periodseffective amendments and supplements shall be required for such transferee-Holders to be named as selling securityholders in such Registration Statement and Prospectus; and
(qs) promptly prior use reasonable best efforts to take all other steps necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing registration of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicehereby.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration ’s obligations pursuant to under Section 3 hereof3, the Company will shall use its best all reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will shall as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any an appropriate form under the Securities Actregistration form, which Registration Statement shall comply as to form shall be available for in all material respects with the sale requirements of the Registrable Securities in accordance with the intended method applicable form and include or methods of distribution thereof and shall include incorporate by reference all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDtherewith or incorporated by reference therein, and in either case use best all reasonable efforts to cause such Registration Statement to become effectiveeffective and remain effective in accordance with Section 3(b); provided provided, however, that before filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto, including information incorporated by reference after the initial filing of the Registration Statement, the Company will shall furnish to one firm of counsel for the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents in substantially the form proposed to be filedfiled (including, upon request, any and all exhibits thereto), which documents will shall be subject to the reasonable and prompt review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the such Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will shall terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 otherwise take all such actions as may be necessary to cause the Registration Statement to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof Selling Holders set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, Selling Holders promptly, and (if requested by any such Personperson) confirm such advice in writingwriting promptly, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed, and, with respect to the such Registration Statement or any post-effective amendmentamendment thereto, when the same has become becomes effective, (2ii) of any comments of the SEC or any state securities authority with regard to the Registration Statement and of any request by the SEC or any state securities authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3iii) of the issuance by the Commission SEC or any state securities authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company 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 purpose, (v) in the case of any shelf Registration Statement, if between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company contained in any securities sale agreement or other similar agreement, relating to the offering were as of the date made not true and correct in all material respects and (6vi) of the happening of any event which or the discovery of any facts that makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue in any material respect or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein 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 momenttime;
(e) if requested by unless available for review on the managing underwriter SEC’s or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringthe Company’s internet website, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterSelling Holder, without charge, at least one signed copy of the Registration Statement and Statement, any amendment (including any post-effective amendment amendment) thereto, including financial statements and schedules, all documents Documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gf) unless available for review on the SEC’s or the Company’s internet website, deliver to each selling holder of Registrable Securities and the underwriters, if anySelling Holder, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hg) prior to any public offering of Registrable Securities, use the Company’s reasonable efforts to (i) register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, Selling Holders and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the state securities or blue sky laws of such jurisdictions one (1) jurisdiction as any seller or underwriter the Selling Holder reasonably requests in writing and (ii) do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions jurisdiction of the Registrable Securities covered by the Registration Statement; provided that the Company will shall 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 or taxation in any such jurisdiction where it is not then so subject;
(ih) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, Selling Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing without any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters Selling Holders may request at least within two (2) business days prior to any sale of Registrable Securities to the underwriterseffective date of the Registration Statement;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(ki) upon the occurrence of any event contemplated by clause (vi) of paragraph (c)(6c) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lj) use all reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on an each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwritersexchange, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in on which the Purchase Agreement; (2) obtain opinions of counsel to Common Stock is then listed or on the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwritersNasdaq National Market, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement Common Stock is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderthen traded thereon;
(ok) make available for inspection by a representative of the holders Selling Holders, one firm of a majority attorneys and one firm of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant accountants retained by the sellers Selling Holder or underwriterHolders, all financial and other records, records and all pertinent corporate documents and properties of the CompanyCompany as shall be reasonably requested by them, and cause the Company's ’s officers, directors and employees to be reasonably available for discussions with and to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons persons unless disclosure of such records, information or documents is required by court or administrative orderorder or becomes publicly available and if the Company so elects, need not be disclosed by the Company unless each such person signs a confidentiality agreement reasonably satisfactory to the Company in which the related Selling Holder agrees to be responsible for such person’s breach of confidentiality on terns reasonably satisfactory to the Company;
(pl) otherwise use its best all reasonable efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, as provided in Rule 158 or otherwise, an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and;
(qm) promptly prior to after the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), unless such document is available to be reviewed on the SEC’s or the Company’s internet website, provide copies of such document to counsel to the selling holders of Registrable Securities Selling Holders and to the managing underwriter or underwriters, if any, make ; and
(n) otherwise reasonably cooperate with the Company's representatives available for discussion Selling Holders to carry out the intent of such document and make such changes in such document prior this Agreement. It shall be a condition precedent to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The obligations of the Company may require each seller of to take any action pursuant to this Agreement with respect to the Registrable Securities as to which of any registration is being effected to furnish to Initiating or Selling Holder that such Initiating or Selling Holder cooperates with the Company in preparing such information regarding the distribution of such securities as the Company may from time to time reasonably request in writingregistration. Each holder of Registrable Securities Selling Holder agrees by acquisition of such Registrable Securities that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k4(c)(vi) hereof, such holder will shall forthwith discontinue disposition of such Registrable Securities until such holder's ’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof4(i), or until it is advised in writing (the "“Advice"”) by the Company that the use of the Prospectus may be resumed, and has has, unless such document is available to be reviewed on the SEC’s or the Company’s internet website, 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 shall deliver to the Company (at the Company's ’s expense) all copies, other than permanent file copies then in such holder's ’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 regarding the maintenance of such the Registration Statement in Section 3 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(64(c)(vi) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement Selling Holder shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k4(i) hereof or the Advice.
Appears in 1 contract
Sources: Registration Rights Agreement (Soon Shiong Patrick)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofof any Registrable Securities, the Company will use its best efforts to shall effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate a form under the Securities Act, which form shall be available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts to cause each such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement continuously effective for a period ending on the earlier of (i) 90 days from the effective date and (ii) such time as all of such securities have been solddisposed of in accordance with the intended method of disposition thereof; cause the Prospectus related prospectus to be supplemented by any required Prospectus prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method as so amended or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify Notify the selling holders of Registrable Securities and the managing underwriters, if any, promptlypromptly (but in any event within two business days), and (if requested by any such Person) confirm such advice notice in writing, (1i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, and, with respect to the a 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 additional information, (3ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purposeorder preventing or suspending the use of any preliminary prospectus, (4iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of Registrable Securities the Company becomes aware that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by paragraph (oSection 5.4(h) below cease to be true and correctcorrect in all material respects, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities for offer or sale in any jurisdiction, (v) if the Company becomes aware of the happening of any event that makes any statement made in such Registration Statement or related prospectus or any 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, prospectus or documents so that, in the case of such Registration Statement, 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 not 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 under which they were made, not misleading.
(d) Use its best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of jurisdiction, and, if any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statementorder is issued, 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 in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any such order suspending the effectiveness of the Registration Statement at the earliest possible moment;.
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 Deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus prospectus or prospectuses (including each preliminary form of prospectus) and any each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwritersunderwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any amendment or supplement thereto;.
(hf) prior Prior to any public offering of Registrable Securities, to use its best efforts to register or qualify or qualify, and cooperate with the selling holders of Registrable Securities, the underwriters, if any, the sales agents and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or "blue sky sky" laws of such jurisdictions within the United States as any seller selling holder or underwriter the managing underwriters reasonably requests request in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementwriting; provided provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(ig) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(6Section 5.4(c)(v) above, as promptly as practicable prepare a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(lh) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter Enter into such agreements (including an underwriting agreement) agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions in connection therewith as are reasonably requested by the managing or sole underwriter in order to expedite or facilitate the registration or the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1i) make such representations and warranties to the holders underwriters, with respect to the business of such Registrable Securities the Company and its subsidiaries, and the underwritersRegistration Statement, prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings offerings, and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters), if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3iii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants 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 the selling holders each of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; and (4iv) if an underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures no less favorable to the holders of Registrable Securities than those set forth in Section 8 5.6 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) with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement agreement, or as and to the extent required thereunder;.
(oi) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, Securityholders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act, ) no later than 45 days after the end of any 12-month period (or 90 days, days after the end of any 12-month period if such period is a fiscal year) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering, or offering and (2ii) if not sold to underwriters in such an offering, beginning with commencing on the first month day of the Company's first fiscal quarter commencing of the Company after the effective date effectiveness of the a Registration Statement, which statements shall cover said 12-month periods; and.
(qi) promptly prior Use its best efforts to the filing of any document which is cause all such Registrable Securities covered by such registration statement to be incorporated by reference into listed on the Registration Statement principal securities exchange on which Common Stock is then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) if no Common Stock is then so listed, use its best efforts to, either (as the Prospectus Company may elect) (after initial filing x) cause all such Registrable Securities to be listed on a national securities exchange or (y) secure designation of all such Registrable Securities as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 or, failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the Registration Statementforegoing, to arrange for at least two market makers to register as such with respect to such shares with the National Association of Securities Dealers, Inc. ("NASD"), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller holder of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such holder and the distribution of such securities Registrable Securities as the Company may may, from time to time time, reasonably request in writing; PROVIDED that such information shall be used only in connection with such registration. The Company may exclude from such registration the Registrable Securities of any holder who unreasonably fails to furnish such information promptly after receiving such request. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.in
Appears in 1 contract
Registration Procedures. In connection with If and whenever the Company's Corporation is required to effect the registration obligations pursuant to of any Registrable Securities under the Securities Act as provided in Section 2 or Section 3 hereof, the Company will use its best efforts to Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities by the holders thereof or the Corporation in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use best its commercially reasonable efforts to cause such Registration Statement to become effectiveeffective and to remain effective as provided herein; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including, without limitation, documents that would be incorporated or deemed to be incorporated therein by reference), the Company will Corporation shall furnish or otherwise make available to the holders of the Registrable Securities covered by such Registration Statement Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comments of such holders holders, counsel and managing underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause continuously effective during 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; period provided herein and 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 Statement; and cause the applicable period in accordance related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended method or methods provisions of distribution the Securities Act with respect to the disposition of the securities covered by the sellers thereof set forth in such Registration Statement Statement, and as so supplemented to be filed pursuant to Rule 424 (or supplement to any similar provisions then in force) under the ProspectusSecurities Act; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes provided, however, that any action that would result in selling holders holder of the Registrable Securities covered thereby not being able that has been included on a “shelf” registration statement may request that such holder’s Registrable Securities be removed from such registration statement, in which event the Corporation shall promptly either withdraw such registration statement or file a post-effective amendment to sell such registration statement removing such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Securities.
(c) notify the Notify each selling holders holder of Registrable Securities Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any notice from the SEC that there will be a review of a Registration Statement and promptly provide such holders, their counsel and the managing underwriters, if any, with a copy of any SEC comments received by the Corporation in connection therewith, (iii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4v) if at any time the representations and warranties of the Company Corporation contained in any agreement (including, without limitation, any underwriting agreement) contemplated by paragraph (oSection 5(o) below cease to be true and correct, (5vi) of the receipt by the Company Corporation 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 jurisdiction, or the initiation or threatening of any proceeding for such purpose purpose, and (6vii) of the happening of any event which that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, 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 Prospectus statements therein, in light of the circumstances under which they were made, not 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 document incorporated therein by reference material fact necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(d) make every Use its commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or a any holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate include in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and such holders may reasonably request in order to permit the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan intended method of distribution with respect to of such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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; securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified of practicable after the matters to be incorporated in Corporation has received such Prospectus supplement or post-effective amendment;request.
(f) furnish Furnish or make available to each selling holder of Registrable Securities Securities, its counsel and each managing underwriter, if any, without charge, at least one signed copy five conformed copies of the Registration Statement Statement, the Prospectus and any Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated exhibits, unless requested by referencesuch holder, counsel or underwriter);.
(g) deliver Deliver to each selling holder of Registrable Securities Securities, its counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusform of Prospectus) and any each amendment or supplement thereto as such Persons may reasonably requestrequest in connection with the distribution of the Registrable Securities; and the Company Corporation, subject to the last paragraph of this Section 5, hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any such amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, use its commercially reasonable efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts or things action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdiction; provided provided, however, that the Company Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(i) cooperate Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold and not bearing any restrictive legends; after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) business days prior to having to issue the underwriters;securities.
(j) use Use its best commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(6Section 5(c)(vii) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities.
(m) 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.
(n) Use its commercially reasonable efforts to cause all shares of Registrable Securities covered by such Registration Statement to be authorized to be quoted on the Nasdaq Global Market or listed on each a national securities exchange if shares of the particular class of Registrable Securities are at that time quoted on which similar securities issued by the Company are then Nasdaq Global Market or listed if on such exchange, as the case may be.
(o) Enter into such agreements (including, without limitation, an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of such the Registrable Securities or being sold in connection therewith (including those reasonably requested by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration, (1i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings offerings, and, if true, confirm the same if and covering matters includingwhen requested, but not limited to, those set forth in (ii) furnish to the Purchase Agreement; (2) obtain selling holders of such Registrable Securities opinions of counsel and a negative assurance letter to the Company Corporation and updates thereof (which counsel counsel, opinions and opinions letter (in form, scope and substance, in the case of such opinions and such letter) shall be reasonably satisfactory to the selling holders of such Registrable Securities, the managing underwriters, if any, and counsels to the selling holders of a majority of the Registrable Securities being sold) Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions and negative assurance letters requested in underwritten offerings and such other matters as may be reasonably requested by such holders holders, counsel and underwriters; , (3iii) obtain "“cold comfort" ” letters and updates thereof from the Company's independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to the each selling holders holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters by underwriters in connection with primary underwritten offerings; , which form and substance shall be reasonably satisfactory to the selling holders of the Registrable Securities, (4iv) if an underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures of substantially to the effect set forth in Section 8 7 hereof with respect to all parties to be indemnified pursuant to said Section; Section and (5v) the Company shall deliver such documents and certificates as may be reasonably requested by the holders any holder of a majority of the Registrable Securities being sold sold, such holder’s counsel and the managing underwriters, if any, to evidence compliance with clause (kthe continued validity of the representations and warranties made pursuant to Section 5(o)(i) above and to evidence compliance with any customary the conditions contained in the underwriting agreement or other agreement entered into by the CompanyCorporation. The above shall be done at each closing under such underwriting or similar agreement agreement, or as and to the extent required thereunder;.
(op) make Make available for inspection by a representative of the selling holders of a majority of the Registrable Securities, any underwriter participating in any such disposition pursuant to such registrationof Registrable Securities, if any, and any attorney attorneys or accountant accountants retained by the sellers such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the CompanyCorporation and its subsidiaries, and cause the Company's officers, directors and employees of the Corporation and its subsidiaries to supply all information in each case reasonably requested by any such representativeholder, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by is not publicly available at the Company in writing as confidential time of delivery of such information shall be kept confidential by such Persons (other than disclosure by such Persons to such Persons’ respective affiliates) unless (i) disclosure of such records, information or documents is required by court or administrative order;order or other legal process, (ii) disclosure of such information is required by law, or (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Corporation written notice of the proposed disclosure prior to such disclosure and, if requested by the Corporation, assist the Corporation in seeking to prevent or limit the proposed disclosure.
(pq) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.regula
Appears in 1 contract
Registration Procedures. In connection with Whenever the Company's registration obligations Investor or Investors holding Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best all reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder, prepare and file file, within sixty (60) days of the date a Registration Notice is delivered to the Company, with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under covering the Securities Act, which form shall be available for registration and the sale of the number of Registrable Securities set forth in accordance the Registration Notice and all amendments and supplements thereto and related Prospectuses with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC respect to be filed therewith, cooperate and assist in any filings required to be made with the NASD, such Registrable Securities and use best all reasonable efforts to cause such Registration Statement to become effective; provided provided, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will shall furnish to one counsel selected by the holders Investors holding a majority of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such holders and underwriterscounsel, and include such additional information reasonably requested by the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of Investors holding a majority of the Registrable Securities covered by such registered under the applicable Registration Statement Statement, or the underwriters, if any, shall reasonably objectfor marketing purposes, whether or not required by applicable securities laws;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when use all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best reasonable efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell register or qualify such Registrable Securities during that period unless under such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller Investor holding Registrable Securities who is participating in the sale of all or underwriter a portion of its Registrable Securities (a "Selling Holder") reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch Selling Holder; provided provided, that the Company will shall not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction or to take any action which would subject it (iii) consent to general service of process (i.e., service of process which is not limited solely to securities law violations) in any such jurisdiction where it is not then so subjectjurisdiction;
(c) notify each Selling Holder (i) cooperate with promptly after it receives notice thereof, of the selling holders 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 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 Registrable Securities any request by the SEC for the amendment or supplementing of such Registration Statement or Prospectus or for additional information, and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities (iii) at any time when a Prospectus relating thereto is required to be sold and not bearing any restrictive legends; and enable such Registrable delivered under the Securities to be in such denominations and registered in such names as Act, of the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence happening of any event contemplated by paragraph (c)(6) aboveas a result of which 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 not misleading, and, at the request of any such Selling Holder, the Company shall promptly prepare a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(ld) furnish to each Selling Holder 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 and such other documents as such Selling Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder;
(e) prepare and file promptly with the SEC, and notify each Selling Holder 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, when any event has occurred as 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 not misleading, and, in case any Selling Holder or any underwriter for any Selling Holder 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, the Company shall use all reasonable efforts to prepare promptly upon request of any such holders or underwriters 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;
(f) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested or on each alternative trading system or association on which similar securities issued by the holders of Company are quoted;
(g) provide a majority of transfer agent and registrar for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nh) enter into and perform such customary agreements (including underwriting agreements in customary form in the event the registration is an underwriting agreementunderwritten offering) and take all such other actions in connection therewith as the Investors holding 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 and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited towithout limitation, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered participation in "cold comfortroad shows," letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions investor presentations and procedures marketing events and effecting a stock split or a combination of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereundershares);
(oi) make available at reasonable times for inspection by a representative of the holders of a majority of the Registrable Securitiesany Selling Holder, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by the sellers any such Selling Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeSelling Holder, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that any records, information or documents that are designated Registration Statement subject to the applicable Person(s) executing a nondisclosure agreement in reasonable form and substance if reasonably required by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderCompany;
(pj) otherwise use its best all reasonable efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, holders an earnings statements satisfying the provisions of Section 11(a) of the Securities Act, statement no later than 45 thirty (30) days after the end of any the 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, beginning with the first month day of the Company's ’s first full fiscal quarter commencing after the effective date of the Registration Statement, which statements earnings statement shall cover said such 12-month periods; andperiod and satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, which requirement will be deemed satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K or 8-K under the Exchange Act;
(qk) promptly prior to permit any Investor or Investors holding Registrable Securities, which Investor or Investors, in the filing of any document which Company’s sole and exclusive judgment, is or might be deemed to be incorporated by reference into the Registration Statement an "underwriter" or the Prospectus (after initial filing a "controlling person" of the Registration Statement), provide copies of such document to counsel to Company as defined in the selling holders of Registrable Securities rules and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company regulations of the happening of any event of the kind described in Section 6(k) hereofSEC, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 to participate in the Prospectus, 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 such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance preparation of such Registration Statement shall and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Investor or Investors and its counsel should be extended by included;
(l) use all reasonable efforts to prevent the number issuance of days during any stop order suspending the period from effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, and including in the date event of the giving issuance of any such stop order or other such order the Company shall advise each Selling Holder of such stop order or other such order promptly after it shall receive notice pursuant or obtain knowledge thereof and shall use its best efforts promptly to Section 6(c)(6obtain the withdrawal of such order;
(m) hereof use all reasonable efforts to and including cause the date when each seller of Registrable Securities covered by such Registration Statement shall have received to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the copies sellers thereof to consummate the disposition of such Registrable Securities;
(n) obtain a "cold comfort" letter from the Company's independent public accountants in customary form and covering such matters of the supplemented type customarily covered by "cold comfort" letters as the Investor or amended prospectus contemplated Investors holding a majority of the Registrable Securities being sold reasonably request; and
(o) provide a legal opinion of the Company's outside counsel, 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 relating thereto in customary form and covering such matters of the type customarily covered by Section 6(klegal opinions of such nature. If any such Registration Statement refers to any Selling Holder by name or otherwise as the holder of any securities of the Company and if, in the Company’s sole and exclusive judgment, such Selling Holder is or might be deemed to be a "controlling person" of the Company, such Selling Holder will have the right to require (i) hereof the insertion therein of language, in form and substance satisfactory to such Selling Holder and presented to the Company in writing, to the effect that the holding by such Selling Holder of such securities is not to be construed as a recommendation by such Selling Holder of the investment quality of the Company's securities covered thereby and that such holding does not imply that such Selling Holder shall assist in meeting any future financial requirements of the Company, or (ii) in the Adviceevent that such reference to such Selling Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to such Selling Holder; provided, that with respect to this clause (ii) such Selling Holder shall furnish to the Company an opinion of counsel to such effect, which opinion and counsel shall be reasonably satisfactory to the Company.
Appears in 1 contract
Registration Procedures. (a) In connection with the Company's registration obligations pursuant of the Company with respect to Section 3 hereofthe Registration Statements, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(ai) prepare and file with the SEC, as soon as practicable, a Registration Statement or SEC the Registration Statements on any appropriate form under the Securities Act, the form of which form (x) shall be selected by the Company and (y) shall be available for the sale resale of the Registrable Securities in accordance by the selling Holders thereof and (z) shall comply as to form with the intended method or methods requirements of distribution thereof and shall include all financial statements required by the SEC to be filed therewithapplicable form; provided, cooperate and assist in any filings required to be made with the NASDhowever, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, other than deemed amendments resulting from filing documents that are incorporated by reference, the Company will furnish to one counsel for the holders of the Registrable Securities covered by such Registration Statement and Statement, chosen by the underwriters, if anyholders of a majority of the Registrable Securities covered by such Registration Statement, copies of all such documents proposed to be filed, which documents and will be subject provide such counsel a reasonable period of time to the reasonable review of and comment on such holders and underwriters, and the documents. The Company will not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectobject on a timely basis;
(bii) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement Statements as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and 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 with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during for the applicable period Registration Period and cause each Prospectus to be supplemented by any required prospectus supplement and cause any supplement to be filed pursuant to Rule 424 under the Securities Act;
(iii) furnish to each Holder of Registrable Securities, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any supplement thereto and such other documents as such Holder may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; and the Company consents to the use of such Prospectus and any amendment or supplement thereto in accordance with applicable law and the terms hereof by each of the selling Holders of Registrable Securities in connection with the offering and sale of the Registrable Securities in accordance with the intended method or methods plan and manner of distribution by the sellers thereof set forth as described in such Registration Statement or supplement to the Prospectus;
(iv) use its commercially reasonable efforts to (x) register or qualify the Registrable Securities under all applicable state securities or "blue sky" laws of such jurisdictions as any selling Holder of Registrable Securities shall reasonably request in writing, (y) keep such registration or qualification in effect for the applicable Registration Period, and (z) do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; provided, however, that the Company shall not be deemed required to have used its best efforts (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to keep a Registration Statement effective during the applicable period qualify but for this Section 6(a)(iv), (ii) file any general consent to service of process or (iii) subject itself to taxation in any such jurisdiction if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby is not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, otherwise so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablesubject;
(cv) promptly notify the selling holders each Holder of Registrable Securities and the managing underwritersand, if any, promptly, and (if requested by any such Person) Holder, confirm such advice in writing, writing (1i) when the Prospectus or each Registration Statement has become effective and when any Prospectus supplement or post-effective amendment thereto has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become filed and becomes effective, (2ii) of any request by the SEC or any state securities authority for amendments or and supplements to the a Registration Statement or the and its respective Prospectus or for additional informationinformation after the Registration Statement has become effective, (3iii) of the issuance by the Commission SEC or any state securities authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company or 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 purpose, and (6) of the happening of in any event which makes any statement made in the Registration Statementsuch case, 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 in order to make the statements therein not misleading;
(d) Company shall make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at and provide immediate notice to each Holder of the earliest possible momentwithdrawal of any such order;
(evi) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringupon request, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterHolder, without charge, at least one signed conformed copy of the each Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all thereto (without documents incorporated therein by reference and all or exhibits (including those incorporated by referencethereto);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(ivii) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; legends and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters selling Holders may reasonably request at least two three business days prior to the delivery of any sale of Registrable Securities to sold under the underwritersRegistration Statements;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kviii) upon the occurrence of any event contemplated by paragraph (c)(6) aboveduring the Pre-Closing Escrow Shares Registration Period, the Closing Shares Registration Period, the Warrant Shares Registration Period or the Demand Shares Registration Period, as the case may be, that makes any statement made in the respective Registration Statement or the related Prospectus untrue in any material respect or that requires the making of any changes in the respective Registration Statement, Prospectus so that they 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 not misleading, the Company shall immediately notify each selling Holder and use its commercially reasonable efforts to prepare and file with the SEC a supplement or posteffective post-effective amendment to the respective Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the such Prospectus will not contain an any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(oix) make available for inspection by a one representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained designated by the sellers or underwriterHolders and their counsel, at reasonable times and in a reasonable manner, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's respective officers, directors and employees of the Company and its independent public accountants to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing representative as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts necessary to comply with all applicable rules and regulations of conduct a reasonable investigation within the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) meaning of the Securities Act; provided, no that, for the purpose of such investigation, such Holders have entered into a confidentiality agreement in a form satisfactory to the Company;
(x) if reasonably requested by any Holder covered by a Registration Statement, promptly incorporate in a Prospectus supplement such information with respect to such Holder as such Holder reasonably requests to be included therein;
(xi) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by a Registration Statement from and after a date not later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 such Registration Statement, ;
(xii) use its reasonable best efforts to list all Registrable Securities covered by such Registration Statement on the Nasdaq Stock Market or other securities exchange on which statements shall cover said 12-month periodsRegistrable Securities of the same class covered by such Registration Statement are then listed; and
(qxiii) promptly prior to in connection with any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies managing underwriter of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. offering.
(b) The Company may require each seller of Registrable Securities as to which any registration is being effected to promptly furnish to the Company such information regarding such seller and the distribution of such securities (which, in the case of a non-underwritten offering may include sales under Rule 144 under the Securities Act), and make such representations, as the Company may from time to time reasonably request in writing. Each holder Holder authorizes the Company to include such information (without independently verifying the accuracy or completeness thereof) in the applicable Registration Statement and/or other documents prepared or filed in connection therewith or in connection with sales of Registrable Securities thereunder. Each Holder agrees to promptly notify the Company of any inaccuracies or changes in the information provided to the Company that may occur subsequent to the date hereof at any time while a Registration Statement including shares owned by acquisition of such Holder remains effective. Each Holder agrees to distribute Registrable Securities only in the manner described in the applicable Registration Statement.
(c) Each Holder agrees to, as expeditiously as possible, (i) notify the Company of the occurrence of any event that makes any statement made in either Registration Statement or Prospectus regarding such Holder untrue in any material respect or that requires the making of any changes in either Registration Statement or Prospectus regarding such Holder so that, in such regard, (A) in the case of a Registration Statement, it will not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (B) in the case of a Prospectus, it will not contain any untrue statement of 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 (ii) provide the Company with such information as may be required to enable the Company to prepare a supplement or post-effective amendment to the applicable Registration Statement or a supplement to such Prospectus.
(d) Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k6(a)(viii) hereof, such holder Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statements until such holderHolder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k6(a)(viii) hereof, or until it is advised in writing (the "Advice") 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 Holder will deliver to the Company (at the Company's expense) all copiescopies in its possession, other than permanent file copies then in such holderHolder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In Each Holder agrees that in the event it receives any notice from the Company shall give under Section 6(a)(viii), it will not disclose such fact to any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdvicePerson.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations Whenever any Registrable Securities are to be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleshall have the following obligations:
(a) The Company shall prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;.
(b) The Company shall prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to the a Registration Statement as may be necessary to keep and the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by Prospectus used in connection with such Registration Statement have been sold; cause the Statement, which Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented is to be filed pursuant to Rule 424 promulgated under the Securities Act; and , as may be necessary to keep such Registration Statement effective at all times during the Effectiveness Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities of the Company covered by such Registration Statement during the applicable period until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement by reason of the Company filing a report on Form 10-QSB, Form 10-KSB or any analogous report under the Securities Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Securities Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(c) The Company shall furnish to each seller of Registrable Securities in any Registration Statement, without charge, (i) promptly after the same is prepared and filed with the Commission at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by such seller, all exhibits and each preliminary Prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the Prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such seller may reasonably request) and (iii) such other documents, including copies of any preliminary or final Prospectus, as such seller may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such seller.
(d) The Company shall use its best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by any seller of the Registrable Securities covered by a Registration Statement under such other securities or "blue sky" laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Effectiveness Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Effectiveness Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be deemed required in connection therewith or as a condition thereto to have used (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction.
(e) The Company shall use its best efforts to keep prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement effective during Statement, or the applicable period if it voluntarily takes any action that would result in selling holders suspension of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture qualification of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders any of Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Holder of any Registrable Securities being sold of the issuance of such order and the managing underwritersresolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(f) The Company shall notify the Holder in writing of the happening of any event, if anyas promptly as practicable after becoming aware of such event, promptlyas a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a 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 (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 2(r), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (if requested by any 10) copies of such Personsupplement or amendment to the Holder (or such other number of copies as the Holder may reasonably request).
(g) confirm such advice The Company shall promptly notify the Holder in writing, writing (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the and when a Registration Statement or any post-effective amendment, when amendment has become effective (notification of such effectiveness shall be delivered to the Holder by facsimile on the same has become effectiveday of such effectiveness and by overnight mail), (2ii) of any request by the SEC Commission for amendments or supplements to the a Registration Statement or the related Prospectus or for additional related information, and (3iii) of the issuance by Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(h) If the Commission Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, at the reasonable request of any stop order suspending such Holder, the Company shall furnish to such Holder, on the date of the effectiveness of such Registration Statement and thereafter from time to time on such dates as the Holder may reasonably request (i) a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Holder, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Holder.
(i) If the Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, then at the request of such Holder in connection with such Holder's due diligence requirements, the Company shall make available for inspection by (i) the Holder, (ii) the Holder’s legal counsel, and (iii) one firm of accountants or other agents retained by the Holder (collectively, the "Inspectors"), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to the Holder) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the initiation of any proceedings for that purposeSecurities Act, (4b) if at the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any time other agreement of which the representations and warranties Inspector has knowledge. 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 contemplated by paragraph and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (oor in any other confidentiality agreement between the Company and the Holder) below cease shall be deemed to be true limit the Holder's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and correctregulations.
(j) The Company shall hold in confidence and not make any disclosure of information concerning the Holder provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (5ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the receipt by the Company release of any notification with respect such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the suspension public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the qualification Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Holder and allow the Holder, at the Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(k) The Company shall use its best efforts either to (i) cause all of the Registrable Securities for sale in any jurisdiction covered by a Registration Statement to be listed on each securities exchange on which securities of the same class or series 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 (ii) secure designation and quotation of all of the Registrable Securities covered by a Registration Statement on The NASDAQ Global Market, The NASDAQ Capital Market or the initiation American Stock Exchange, or threatening of any proceeding (iii) if, despite the Company's best efforts to satisfy, the preceding clauses (i) and (ii) the Company is unsuccessful in satisfying the preceding clauses (i) and (ii), to secure the inclusion for quotation on the Over-the-Counter Bulletin Board for such purpose and (6) Registrable Securities and, without limiting the generality of the happening of any event which makes any statement made foregoing, to use its best efforts to arrange for at least two market makers to register with the Financial Industry Regulatory Authority, Inc. (“FINRA") as such with respect to such Registrable Securities. The Company shall pay all fees and expenses 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 in order to make the statements therein not misleading;connection with satisfying its obligation under this Section 2(k).
(dl) make every reasonable effort The Company shall cooperate with the Holder who hold Registrable Securities being offered and, to obtain the withdrawal extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any order suspending restrictive legend) representing the effectiveness of the Registrable Securities to be offered pursuant to a Registration Statement at and enable such certificates to be in such denominations or amounts, as the earliest possible moment;case may be, as the Holder may reasonably request and registered in such names as the Holder may request.
(em) if If requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringHolder, promptly the Company shall (i) as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should Holder reasonably requests to be included therein relating to the plan sale and distribution of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered or sold, the purchase price being paid therefor by such 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 (ii) as soon as practicable make all required filings of such Prospectus supplement or post-effective amendment as soon as after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by the Holder holding any Registrable Securities.
(fn) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) shall use its best efforts to cause the Registrable Securities covered by the applicable a 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 underwriters, if any, to consummate the disposition of such Registrable Securities;.
(ko) upon The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers close of the Registrable Securitiesperiod covered thereby, an earnings statement (in form complying with, and in the manner provided by, the Prospectus will not contain an untrue statement provisions of Rule 158 under the Securities Act) covering a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the a Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;.
(p) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of Commission in connection with any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; andregistration hereunder.
(q) promptly prior Within two (2) business days after a Registration Statement which covers Registrable Securities is ordered effective by the Commission, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the filing of any document which is transfer agent for such Registrable Securities (with copies to be incorporated by reference into the Holder whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement or has been declared effective by the Prospectus Commission in the form attached hereto as Exhibit B and the Irrevocable Transfer Agent Instructions in the form attached hereto as Exhibit C.
(r) Notwithstanding anything to the contrary herein, at any time after initial filing the Effective Date of a Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Registration Statement)Board of Directors of the Company and its counsel, provide copies in the best interest of such document to the Company and, in the opinion of counsel to the selling holders Company, otherwise required (a "Grace Period"); provided, that the Company shall promptly (i) notify the Holder in writing of Registrable Securities and the existence of material, non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the managing underwritersHolder) and the date on which the Grace Period will begin, if anyand (ii) notify the Holder in writing of the date on which the Grace Period ends; and, make provided further, that no Grace Period shall exceed five (5) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of twenty (20) days and the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt first day of any Grace Period must be at least five (5) trading days after the last day of any prior Grace Period (each, an "Allowable Grace Period"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Holder receives the notice from referred to in clause (i) and shall end on and include the Company later of the happening of any event of date the kind described Holder receives the notice referred to in Section 6(kclause (ii) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of and the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised date referred to in writing (the "Advice") 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 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 provisions of Section 2(e) hereof shall not be applicable during the event period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall again be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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 bound by Section 6(k2(f) hereof or the Advice.with resp
Appears in 1 contract
Sources: Registration Rights Agreement (Bonds.com Group, Inc.)
Registration Procedures. (a) In connection with the Company's registration obligations pursuant to Section 3 2 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto thereto, the Company will use its best efforts to as expeditiously as possible:
(ai) prepare and file with the SEC, as soon as practicable, and in any event within 60 days from the date of request (unless a shorter period is expressly set forth herein), a Registration Statement or Registration Statements relating to the applicable registration on any appropriate form under the Securities Act, which form forms shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by of the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDCompany, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of the Registration Statement, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement each Participating Purchaser and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders the Participating Purchasers and the underwriters, if any, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;which
(bii) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by included in such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by included in such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby any Participating Purchaser not being able to sell such its Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(ciii) notify the selling holders of Registrable Securities each Participating Purchase and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (oSection 4(a)(xiv) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein not misleading;
(div) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(ev) if reasonably requested by the managing underwriter or underwriters or a holder by Participating Purchasers holding in the aggregate in excess of 50% of the Registrable Securities being sold in connection with an underwritten offeringcovered by the Registration Statement, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold such Participating Purchasers agree should be included therein relating included
(vi) prior to the plan filing of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), make available representatives of the Company for discussion of such document and make such changes in such Prospectus supplement document prior to the filing thereof as any Participating Purchaser or post-effective amendmentthe underwriters, if any, may reasonable request;
(fvii) furnish to each selling holder of Registrable Securities Participating Purchaser and each managing underwriter, if any, without charge, at least one signed copy of the 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);
(gviii) deliver to each selling holder of Registrable Securities Participating Purchaser and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably reasonable request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities any such Purchasers and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hix) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securitieseach Participating Purchaser, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller Participating Purchaser or any underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(ix) cooperate with the selling holders of Registrable Securities Participating Purchasers and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two (2) business days prior to any sale of Registrable Securities to the underwriters;
(jxi) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof each Participating Purchaser or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(lxiii) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nxiv) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionconnection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Underwritten Registration, (1) make such representations and warranties to the holders of such Registrable Securities each Participating Purchaser and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreementofferings; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (opinions, in form, scope and substance) shall be reasonably satisfactory to each Participating Purchaser and the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such holders any Participating Purchaser and the underwriters, if any; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities each Participating Purchaser and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 6 hereof with respect to all parties to be indemnified pursuant to said Sectionunderwriting agreement; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold any Participating Purchaser and the managing underwriters, if any, to evidence compliance with clause (k1) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(oxv) make available for inspection by a representative of the holders of a majority of the Registrable Securitiesany Participating Purchaser, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers any Participating Purchaser or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;provided
(pxvi) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering a period of twelve (12) months, beginning within three months after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than 45 days after ;
(xvii) cooperate with the end Participating Purchasers 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 NASD;
(xviii) in the case of any 12-month period Demand Registration which is an Underwritten Offering, participate in customary "roadshow" and similar marketing presentations as reasonably requested by the underwriters (or 90 days, if such period is a fiscal year) (1) commencing at it being agreed that representatives of the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters Zilkha Entities may participate in such an offering, beginning with roadshows to the first month of extent the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodsunderwriters determine it is advisable for them to do so); and
(qxix) promptly prior take such other actions as reasonably may be requested by the Participating Purchasers in order to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus applicable registration.
(after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. b) The Company may require each seller of Registrable Securities as to which any registration is being effected Purchaser to furnish to the Company such information regarding the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing. .
(c) Each holder of Registrable Securities Purchaser agrees by acquisition of such the Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k4(a)(iii)(6) hereof, such holder Purchaser will forthwith discontinue disposition of Registrable Securities until such holderPurchaser's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k4(a)(xii) hereof, or until it is advised in writing (the "Advice") 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 Purchaser will deliver to the Company (at the Company's expense) ), all copies, other than permanent file copies then in such holderPurchaser'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 regarding the maintenance effectiveness of such Registration Statement Statements set forth in Section 2 hereof and Section 4(b) hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(64(a)(iii)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement Purchaser shall have received the receive copies of the supplemented or amended prospectus Prospectus contemplated by Section 6(k4(a)(xii) hereof or the Advice, as applicable.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 2 hereof, the Company will use its best commercially reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will use commercially reasonable efforts to as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, and in any event within 60 days from the date of request, a Registration Statement or Registration Statements relating to the applicable registration on any appropriate form under the Securities Act, which form forms shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by of the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDCompany, and use best its commercially reasonable efforts to cause such Registration Statement to become effective; provided PROVIDED that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, other than documents incorporated by reference after the initial filing of the Registration Statement, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Investor and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders the Investor and the underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto (other than such documents incorporated by reference) to which the holders of a majority of the Registrable Securities covered by such Registration Statement Investor or the underwriters, if any, underwriters shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by included in such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by included in such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best commercially reasonable efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby Investor not being able to sell such its Registrable Securities during that period unless such action is required under applicable law, provided ; PROVIDED that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k)3(j) hereof, if applicable;
(c) notify the selling holders of Registrable Securities Investor and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1l) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (ol) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if reasonably requested by the managing underwriter or underwriters or a holder by the Investor holding in the aggregate in excess of 50% of the Registrable Securities being sold in connection with an underwritten offeringcovered by the Registration Statement, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold Investor agree should be included therein relating to the plan sale of distribution with respect to such the Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten Underwritten (or best efforts underwritten) offering 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 notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities the Investor and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities the Investor and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities Investor and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable SecuritiesInvestor, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Investor or any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided , provided, however, 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 submit to general service of process or taxation in any such jurisdiction where in which it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities Investor and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6Section 3(c)(6) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(lk) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nl) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionconnection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration into, (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreementofferings; (2) use its reasonable efforts to obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Investor and the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such holders the Investor and the underwriters; (3) use its reasonable efforts to obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities Investor and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offeringsUnderwritten Offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 5 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k1) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(om) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's officers, directors trust managers and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided PROVIDED that any records, information or documents that are designated by the Company designates in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(pn) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(qo) promptly prior to cooperate with each underwriter participating in the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies disposition of such document to counsel to the selling holders of Registrable Securities and their respective counsel in connection with any filings required to be made with the managing underwritersNational Association of Securities Dealers, if any, make Inc. (the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request"NASD"). The Company may require the Investor and each seller of Registrable Securities Pecuniary Owner, as to which any registration is being effected applicable, to furnish to the Company such information regarding the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities The Investor agrees by acquisition of such the Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k3(j) hereof, such holder the Investor will forthwith discontinue disposition of Registrable Securities until such holderthe Investor's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k3(j) hereof, or until it is advised in writing (the "AdviceADVICE") 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 the Investor will deliver to the Company (at the Company's expense) ), all copies, other than permanent file copies then in such holderthe Investor'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 regarding the maintenance effectiveness of such Registration Statement Statements set forth in Section 2 hereof and Section 3(b) hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(63(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement the Investor shall have received the receive copies of the supplemented or amended prospectus contemplated by Section 6(k3(j) hereof or the Advice.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Apartment Investment & Management Co)
Registration Procedures. In connection with the Company's registration obligations pursuant to under Section 3 2 hereof, the Company will use its best efforts to shall effect such registration to permit the sale of the Registrable Securities in accordance with the method or methods of disposition thereof intended by the holders of such Registrable Securities (except that the Company shall not be required to effect any registration pursuant to Section 2 involving an underwriting), and pursuant thereto the Company shall as expeditiously as practicable:
(a) Prepare and file with the Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided provided, that before filing a any such Registration Statement or Prospectus or any amendments or supplements thereto, thereto (other than documents that would be incorporated or deemed to be incorporated therein by reference and that the Company will is required by applicable securities laws or stock exchange requirements to file) the Company shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, Special Counsel copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders Special Counsel and underwritersthe holders, and the Company will shall not file any such Registration Statement or amendment thereto or any Prospectus or any amendment or supplement thereto (other than such documents which, upon filing, would be incorporated or deemed to be incorporated by reference therein and that the Company is required by applicable securities laws or stock exchange requirements to file) to which the holders of a majority in aggregate principal amount of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Special Counsel shall reasonably object;object on a timely basis.
(b) prepare Prepare and file with the SEC Commission such amendments and post-post- effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified in Section 2; cause the related Prospectus to be amended or supplemented by any required amendment or Prospectus supplement, and as so amended or supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition intended by the sellers holders thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition Prospectus as so amended or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify Notify the Special Counsel and any selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6v) of the existence of any fact or the happening of any event which makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not 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 the light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) make every Use all reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible practicable moment;.
(e) if If reasonably requested by the managing underwriter or underwriters or holders of a holder majority in aggregate principal amount of the Registrable Securities being sold in connection with an underwritten offeringsold, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and Company or the holders of a majority in aggregate principal amount of the such Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securitiesas required by applicable law, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;, and (iii) supplement or make amendments to any Registration Statement consistent with clause (i) or (ii) above; provided, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the opinion of outside counsel for the Company, in compliance with applicable law.
(f) furnish Furnish to each selling holder of Registrable Securities and each managing underwriterthe Special Counsel, upon request and without charge, at least one signed conformed copy of the Registration Statement or Statements and any post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated exhibits, unless requested in writing by referencesuch holder or counsel);.
(g) deliver Deliver to each selling holder of Registrable Securities and the underwriters, if anySpecial Counsel, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of the such Prospectus or any each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, Securities and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing writing; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(i) Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v) or 4(c)(vi) above, prepare a supplement or post-effective amendment to each Registration Statement or an amendment or supplement to the related Prospectus or any document incorporated therein by reference or file any other required document (such as a Current Report on Form 8-K) so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) If necessary in connection with a disposition of Registrable Securities, make available for inspection, at the offices where normally kept during reasonable business hours, by a representative of the holders of Registrable Securities being sold and any attorney or accountant retained by such selling holders, financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries as they may reasonably request, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, attorney or accountant in connection with such disposition; provided, that any records, information or documents that are designated by the Company in writing as confidential at the time of delivery of such records, information or documents shall be kept confidential by such Persons, and such Persons shall so agree in writing, unless (i) such records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of such records, information or documents is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities or (iii) disclosure of such records, information or documents is otherwise required by law (including, without limitation, pursuant to the requirements of the Securities Act).
(l) Comply with all applicable rules and regulations of the Commission and make generally available to its security holders earning statements satisfying the provisions of section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than forty- five (45) days after the end of any twelve (12) month period (or ninety (90) days after the end of any twelve (12) month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company, after the effective date of a Registration Statement, which statements shall cover said twelve (12) month periods.
(m) Enter into such agreements and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities.
(n) Unless any Registrable Securities shall be in book-entry only form, cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters holders may request at least two business days prior to any sale of Registrable Securities to the underwriters;request.
(jo) use its best efforts to cause Provide the Registrable Securities covered by transfer agent for the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) Common Stock with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary The Depository Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;.
(p) otherwise use its best efforts Cause the Common Stock to comply with all applicable rules and regulations of be listed on each securities exchange or quotation system on which the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, Company's Common Stock is then listed no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)is declared effective and, provide copies of such document to counsel in connection therewith, to the selling holders of Registrable Securities extent applicable, to make such filings under the Exchange Act and to the managing underwriters, if any, make the Company's representatives available for discussion of have such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestfilings declared effective thereunder. The Company may require each seller selling holder of Registrable Securities as to which any registration is being effected effected, and such selling holder of Registrable Securities agrees, to furnish to the Company such information regarding the distribution of such securities Registrable Securities as the Company may may, from time to time time, reasonably request in writingwriting and the Company may exclude from such registration the Registrable Securities of any holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. Each holder of Registrable Securities as to which any Registration Statement is being effected agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such holder not misleading. Any sale of any Registrable Securities by any holder shall constitute a representation and warranty by such holder that the information relating to such holder and its plan of distribution is as set forth in the Prospectus delivered by such holder in connection with such disposition, that such Prospectus does not as of the time of such sale contain any untrue statement of a material fact relating to such holder or its plan of distribution and that such Prospectus does not as of the time of such sale omit to state any material fact relating to such holder or its plan of distribution necessary to make the statements in such Prospectus, in the light of the circumstances under which they were made, not misleading. Each holder of Registrable Securities agrees 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(k4(c)(ii), 4(c)(iii), 4(c)(iv), 4(c)(v) or 4(c)(vi) hereof, such holder will forthwith discontinue disposition of such Registrable Securities covered by the applicable Registration Statement or Prospectus until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k4(j) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in the such Prospectus, 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 such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 1 contract
Sources: Registration Rights Agreement (Western Micro Technology Inc /De)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section Sections 2, 3 and 4 hereof, the Company will use its best efforts to effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible, in each case, to the extent applicable:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be Act available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, thereto (including documents that would be incorporated or deemed to be incorporated therein by reference) the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Statement, the Special Counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders holders, the Special Counsel and such underwriters, and the Company will not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents which, upon filing, would or would be incorporated or deemed to be incorporated by reference therein) to which the holders of a majority of the Registrable Securities covered by such Registration Statement Statement, the Special Counsel or the underwritersmanaging underwriter, if any, shall reasonably object;object on a timely basis.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified in Section 3; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify Notify the selling holders of Registrable Securities Securities, the Special Counsel and the managing underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iv) if at any time the representations and warranties of the Company contained in any agreement contemplated by paragraph Section 6(n) hereof (oincluding any underwriting agreement) below cease to be true and correct, (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6vi) of the happening occurrence of any event which makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in a Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading and, 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 or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;, and (vii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) make Use every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or the holders of a holder majority of the Registrable Securities being sold in connection with an underwritten offeringregistered, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and the holders of a majority of the Registrable Securities being sold such holder 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor as may be required by such underwriters applicable law and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; provided, however, that the Company will not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law.
(f) furnish Furnish to each selling holder of Registrable Securities Securities, the Special Counsel and each managing underwriter, if any, without charge, at least one signed conformed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed incorporated therein by reference and all exhibits (including those incorporated exhibits, unless requested in writing by referencesuch holder, counsel or underwriter);.
(g) deliver Deliver to each selling holder of Registrable Securities Securities, the Special Counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; and the Company hereby consents to the use of the such Prospectus or any each amendment or supplement thereto by each of the selling holders of or Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if anyany , and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing writing; use all reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions jurisdiction of the Registrable Securities covered by the applicable Registration Statement; provided provided, however, that the Company will not be required to (i) qualify generally general to do business in any jurisdiction where in which it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where in which it is not then so subject;.
(i) cooperate Cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may underwriters, if any, shall request at least two business days prior to any sale of Registrable Securities to the underwriters;.
(j) use its best Use all reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States except as may be required solely as a consequence of the nature of such selling holder's business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(6Section 6(c)(vi) aboveor 6(c)(vii) hereof, prepare a supplement or posteffective post-effective amendment to the each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) Use all reasonable efforts to cause all Registrable Securities covered by the such Registration Statement to be (i) listed on each securities exchange exchange, if any, on which similar securities issued by the Company are then listed or, if no similar securities issued by the Company are then so listed, on the New York Stock Exchange or another national securities exchange if the securities qualify to be so listed or (ii) authorized to be quoted on the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or the National Market System of NASDAQ if the securities qualify to be so quoted; in each case, if requested by the holders of a majority of such the Registrable Securities covered by such Registration Statement or the managing underwriters, if any;.
(m) not later than Prior to the effective date of the first Demand Registration Statementor the first Piggyback Registration, provide a CUSIP number for all Registrable Securities whichever shall occur first, (i) engage an appropriate transfer agent and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary The Depository Trust Company;Company and (ii) provide a CUSIP number for the Registrable Securities.
(n) enter Enter into such agreements (including including, in the event of an underwritten offering, an underwriting agreementagreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions in connection therewith (including those requested by the holders of a majority of the Registrable Securities being sold or,in the event of an underwritten offering, those requested by the managing underwriters) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration, (1i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each such selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters, including without limitation the matters referred to in Section 6(n)(i) hereof; (3iii) use its best efforts to obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to the each selling holders holder of Registrable Securities and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5iv) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold sold, the Special Counsel and the managing underwriters, if any, to evidence compliance with the continued validity of the representations and warranties of the Company and its subsidiaries made pursuant to clause (ki) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other similar agreement entered into by the Company. The above shall foregoing actions will be done at taken in connection with each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(o) make Make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesSecurities being sold, any underwriter participating in any disposition pursuant to such registrationof Registrable Securities, and any attorney or accountant retained by the sellers such selling holders or underwriter, all financial and other records, pertinent corporate documents and properties of the CompanyCompany and its subsidiaries, and cause the Company's officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by the Company in writing as confidential shall at the time of delivery of such records, information or documents will be kept confidential by such Persons persons unless (i) such records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of such records, information or documents is required by court or administrative order;order or is necessary to respond to inquiries of regulatory authorities, or (iii) disclosure of such records, information or documents, in the opinion of counsel to such person, is otherwise required by law (including, without limitation, pursuant to the requirements of the Securities Act).
(p) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act, ) no later than 45 calendar days after the end of any 12-month period (or 90 days, calendar days after the end of any 12-month period if such period is a fiscal year) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering, or and (2ii) if not sold to underwriters in such an offering, beginning with commencing on the first month day of the first fiscal quarter of the Company's first fiscal quarter commencing , after the effective date of the a Registration Statement, which statements shall cover said 12-month periods; andperiod.
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.connec
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofAt its sole expense, the Company will do the following during the Commitment Period:
(a) use its best efforts to effect such registration to permit keep the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed Prospectus Supplement continuously effective under the Securities Act until the Investor ceases to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the hold Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectSecurities;
(b) prepare and file with the SEC such amendments and amendments, post-effective amendments amendments, and supplements to the Registration Statement and the Prospectus Supplement as may be reasonably requested by the Investor or as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause and the Prospectus Supplement effective and 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith Registration Statement and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableProspectus Supplement;
(c) notify promptly give the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) Investor notice of any request by event (including the SEC for amendments or supplements to passage of time) which makes the Registration Statement or the Prospectus Supplement not to be in compliance with Sections 5(b) or for additional information, (3) 10 of the issuance by Securities Act and shall use its best efforts thereafter to file with the Commission of SEC any stop post-effective amendment to the Registration Statement, amended prospectus, or prospectus supplement in order suspending the effectiveness to comply with Sections 5(b) or 10 of the Registration Statement or Securities Act;
(d) notify the initiation of any proceedings for that purpose, (4) if Investor at any time the representations and warranties of the Company contemplated by paragraph (o) below cease when a prospectus relating thereto is required to be true and correct, (5) of delivered under the receipt by the Company 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 and (6) Act of the happening of any event as a result of which makes any statement made the prospectus included 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 in order to make the statements therein 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 moment;
(e) if 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 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 the Prospectus Supplement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the number of Registrable Securities being sold to such underwriters, statements therein not misleading or incomplete in the purchase price being paid therefor by such underwriters and with respect to any other terms light of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in circumstances under which they were made, and following such offering; notification promptly prepare and make all required filings of such Prospectus supplement or file a post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or a supplement to the related prospectus or Prospectus Supplement or any document incorporated therein by reference or reference, and file any other required document that would be incorporated by reference into such Registration Statement, prospectus, and Prospectus Supplement, so thatthat the Registration Statement, as thereafter delivered to the purchasers of the Registrable Securitiesprospectus, the and Prospectus will Supplement do not contain an 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, and that such prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in the case of a post-effective amendment to the Registration Statement, use best efforts to cause it to be declared effective as promptly as is reasonably practicable, and give to the Investor a written notice of such amendment or supplement, and, upon receipt of such notice, the Investor agrees not to sell any Registrable Securities pursuant to the Registration Statement and Prospectus Supplement until the Investor’s receipt of copies of the supplemented or amended prospectus or until it receives further written notice from the Company that such sales may re-commence;
(le) cause all Registrable Securities use its best efforts to prevent, or obtain the withdrawal of, any order suspending the effectiveness of the Registration Statement (and promptly notify in writing the Investor covered by the Registration Statement of the withdrawal of any such order);
(f) cause all such Registrable Securities registered hereunder to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;listed; and
(mg) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other reasonable actions in connection therewith as are necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 1 contract
Sources: Securities Purchase Agreement (Greenbrook TMS Inc.)
Registration Procedures. In connection with the Company's registration obligations (a) Whenever a Holder has requested that any Registrable Shares be registered pursuant to Section 3 hereofthe terms of this Agreement, the Company will use its best efforts to effect such the registration to permit and the sale of such Registrable Securities Shares in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(ai) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements registration statement on any the appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Shares and use its best efforts to cause such Registration Statement registration statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by effective as soon as practicable after such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectfiling;
(bii) prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, or and such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus prospectus usable and 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 with respect to the disposition of all securities covered by such Registration Statement during registration statement until such time as the applicable period Registrable Shares registered thereunder have been disposed of in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement registration statement; provided that, at least five business days prior to filing a registration statement or supplement to prospectus or any amendments or supplements thereto, excluding documents incorporated by reference after the Prospectus; initial filing of the registration statement, the Company shall not be deemed furnish to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders Holders of the Registrable Securities Shares covered thereby not being able to sell by such Registrable Securities during that period unless such action is required under applicable law, provided that registration statement (the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k“Selling Holders”), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities Selling Holders’ counsel and the underwriters, if any, without charge, as many draft copies of all such documents proposed to be filed, which documents will be subject to the Prospectus review of such Holders’ counsel and the underwriters, if any, and the Company will not, unless required by law, file any registration statement or amendment thereto or any prospectus or any supplement thereto to which Holders of at least a majority of the Registrable Shares covered thereby (the “Objecting Party”) shall reasonably object, pursuant to notice given to the Company prior to the filing of such amendment or supplement (the “Objection Notice”) and no later than five business days after receipt of the documents to which the Objection Notice relates. The Objection Notice shall set forth the objections and the specific areas in the draft documents where such objections arise. The Company shall have five business days after receipt of the Objection Notice to correct such deficiencies to the satisfaction of the Objecting Party, and will notify each Selling Holder of any stop order issued or threatened by the Commission in connection therewith and shall use its best efforts to prevent the entry of such stop order or to remove it at the earliest possible moment if entered;
(iii) furnish to each Selling Holder and the underwriters of the securities being registered such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons Selling Holder or underwriters may reasonably request; request in order to facilitate 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 connection with the offering and sale disposition of the Registrable Securities covered Shares owned by such Selling Holder or the Prospectus or any amendment or supplement theretosale of such securities by such underwriters;
(hiv) prior use its reasonable best efforts to any public offering comply with all applicable rules and regulations of Registrable Securities, the Commission and make generally available to the security holders as soon as practicable after the effective date of the applicable registration statement an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(v) use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale Shares under the such other securities or “blue sky sky” laws of such jurisdictions as any seller or underwriter Selling Holder reasonably requests in writing and do any and all other acts or and things which may be necessary or advisable desirable to enable such seller to consummate the public sale or other disposition in such jurisdictions of the Registrable Securities covered Shares owned by the Registration Statement; provided such Selling Holder (provided, however, that the Company will not be required to qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph or to take any action which would subject it consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction);
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(lvi) cause all such Registrable Securities covered by the Registration Statement Shares to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nvii) enter into such customary agreements (including an underwriting agreementagreements) and take all such other actions in connection therewith as a Selling Holder or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderShares;
(oviii) make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesSelling Holders, any underwriter participating in any disposition pursuant to such registrationregistration statement, and any attorney attorney, accountant or accountant retained other agent designated by the sellers any such Selling Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeSelling Holder, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationregistration statement; provided provided, however, that any such records, documents, properties and information or documents provided by the Company that are is designated in writing by the Company in writing good faith as confidential at the time of delivery of such records, documents, properties or information, as applicable, shall be kept confidential by all such Persons unless (x) disclosure thereof is made in connection with a court proceeding or required by law (provided, however that each such Person shall, upon learning that disclosure of such records, information documents, properties or documents information, as applicable, is sought in a court proceeding or required by court law, give notice to the Company to allow the Company to undertake appropriate action to prevent disclosure at the Company’s sole expense), or administrative order(y) such records, documents, properties or information, as applicable, has previously been made or becomes available to the public generally through the Company or through a third party without an accompanying obligation of confidentiality;
(pix) otherwise use its best cause the Company’s officers, directors and employees to participate in marketing efforts as reasonably requested by the underwriters, including participating in “roadshow” meetings with potential investors;
(x) notify each Selling Holder, promptly after it shall receive notice thereof, of the time when such registration statement has become effective or a supplement to comply any prospectus forming apart of such registration statement has been filed;
(xi) notify each Selling Holder of any request by the Commission for the amending or supplementing of such registration statement or prospectus or for additional information;
(xii) prepare and file with all applicable the Commission, promptly upon the request of any Selling Holder, any amendments or supplements to such registration statement or prospectus which, in the reasonable opinion of counsel selected by such Selling Holder, is required under the Securities Act or Exchange Act or the rules and regulations thereunder in connection with the distribution of Registrable Shares by such Selling Holder;
(xiii) prepare and promptly file with the Commission and promptly notify each Selling Holder of such Registrable Shares of the SECfiling of such amendment or supplement to such registration statement or prospectus as may be necessary to correct any statements or omissions if, and make generally available at the time when a prospectus relating to its security holders, earnings statements satisfying the provisions of Section 11(a) of such securities is required to be delivered under the Securities Act, no later than 45 days after any event shall have occurred as the end result of which any such prospectus would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading;
(xiv) at the request of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter Selling Holder in which Registrable Securities are sold to underwriters in a firm or best efforts connection with an underwritten offering, furnish on the date or dates provided for in the underwriting agreement a customary opinion of counsel, addressed to the underwriters and the Holders, covering such matters as such underwriters and Holders may reasonably request;
(2xv) if not sold to underwriters in such an offering, beginning with obtain “cold comfort” letters and updates thereof from the first month independent certified public accountants of the Company's first fiscal quarter commencing after the effective date Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing Company or of any document business acquired by the Company for which is financial statements and financial data are, or are required to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of be, included in the Registration Statement), provide copies of addressed to each Selling Holder (provided such document to counsel to Selling Holder furnishes the selling holders of Registrable Securities accountants with such representations as the accountants customarily require in similar situations) and to the managing underwriters, if any, make in customary form and covering matters of the Company's representatives available for discussion of type customarily covered in “cold comfort” letters in connection with underwritten offerings; and
(xvi) deliver such document documents and make such changes certificates as may be reasonably requested by the Selling Holders and the underwriters, including those to evidence compliance with any customary conditions contained in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. underwriting agreement.
(b) The Company may require each seller of Registrable Securities as to which any registration is being effected the Holders to furnish to the Company such information regarding the distribution of such securities and such other information relating to the Holders participating in such distribution and the ownership by the Holders of Registrable Shares as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of Holder shall furnish 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 deliver information 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 and cooperate with the Company shall give any such notice, as reasonably necessary to enable the time periods regarding Company to comply with the maintenance provisions of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicethis Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Assured Guaranty LTD)
Registration Procedures. In connection Whenever ▇▇▇▇▇▇ has made a Request in accordance with Section 6.1 that any Registrable Securities be registered pursuant to this Agreement, New Mylan shall:
(a) as expeditiously as reasonably practicable after the receipt by New Mylan of such a Request, prepare and file with the Company's SEC a Required Registration Statement or Required Shelf Registration Statement, as the case may be, providing for the registration obligations pursuant to Section 3 hereof, under the Company will use its best efforts to effect such registration to permit Securities Act of the sale of such Registrable Securities which New Mylan has been so requested to register in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof specified in such Request, and shall include all financial statements required use reasonable best efforts to have such Required Registration Statement or Required Shelf Registration Statement, as the case may be, declared effective by the SEC as soon as practicable thereafter and to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause keep such Registration Statement to become effective; provided that before filing a Required Registration Statement or Prospectus Required Shelf Registration Statement, as the case may be, continuously effective (i) in the case of a Demand Registration, for a period of at least ninety (90) calendar days (or, in the case of an underwritten offering, such period as the underwriters may reasonably require) following the date on which such Required Registration Statement is declared effective (or any amendments or supplements thereto, the Company will furnish to the holders such shorter period which shall terminate when all of the Registrable Securities covered by such Required Registration Statement and have been sold pursuant thereto) or (ii) in the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders case of a majority of the Shelf Registration, until such time as all Registrable Securities covered by such Required Shelf Registration Statement have been sold pursuant thereto, including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or Required Shelf Registration Statement or the underwritersrelated prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement or Required Shelf Registration Statement, if anyrequired by the rules, shall reasonably objectregulations or instructions applicable to the registration form used by New Mylan for such Required Registration Statement or Required Shelf Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky Laws, or any rules and regulations thereunder;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during for the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable(a) above;
(c) furnish to the Abbott Shareholders such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as Abbott may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Abbott Shareholders;
(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky Laws of such jurisdictions in the United States as Abbott reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Abbott Shareholders to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Abbott Shareholders; provided that New Mylan shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction where it is not so subject;
(e) in the event of any underwritten public offering, enter into an underwriting agreement or similar agreement, in usual and customary form, with the managing underwriters of such offering and use reasonable best efforts to take such other actions as the managing underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including causing its senior officers to participate in “road shows” and other information meetings organized by the managing underwriters;
(f) notify Abbott, at any time when a prospectus relating thereto is required to be delivered under the selling Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein, not misleading, and in such case, subject to Section 6.2, New Mylan shall promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the holders of Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, not misleading;
(g) use its reasonable best efforts to cause all such Registrable Securities which are registered to be listed on each securities exchange on which similar securities issued by New Mylan are then listed;
(h) enter into such customary agreements and use reasonable best efforts to take all such other actions as Abbott or the managing underwriters, if any, promptlyreasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(i) make available for inspection by Abbott, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Abbott Shareholders or any underwriter, financial and other records, pertinent corporate documents and properties of New Mylan and its Subsidiaries as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and (if cause New Mylan’s officers, directors, employees and independent accountants to supply all other information reasonably requested by Abbott or any such Personunderwriter, attorney, accountant or agent in connection with such Registration Statement;
(j) confirm if such advice sale is pursuant to an underwritten offering, use reasonable best efforts to obtain “comfort” letters dated the pricing date of the offering of the Registrable Securities and the date of the closing under the underwriting agreement from New Mylan’s independent public accountants in writingcustomary form and covering such matters of the type customarily covered by “comfort” letters in connection with underwritten offerings as the managing underwriter reasonably requests;
(k) use reasonable best efforts to furnish, (1) when at the Prospectus request of Abbott on the date such securities are delivered to the underwriters for sale pursuant to such registration or any Prospectus supplement or post-effective amendment has been filedare otherwise sold pursuant thereto, andan opinion and a “10b-5” letter, dated such date, of counsel representing New Mylan for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal and other matters with respect to the registration in respect of which such opinion is being given and such letter is being delivered as the underwriters, if any, and the seller may reasonably request and are customarily included in such opinions and letters;
(l) subject to Section 6.2, use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement or any post-registering such Registrable Securities;
(m) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable after the effective amendmentdate of the Registration Statement, when an earnings statement covering the same has become effectiveperiod of at least 12 months beginning with the first day of New Mylan’s first full calendar quarter after the effective date of the Registration Statement, (2which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(n) reasonably cooperate with the Abbott Shareholders 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 FINRA;
(o) notify in writing Abbott and the underwriter, if any, of the following events as promptly as reasonably practicable:
(i) the effectiveness of any such Registration Statement;
(ii) any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, information and when same has been filed and become effective;
(3iii) of the issuance by the Commission 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
(4iv) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company New Mylan 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws Laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence initiation or threat of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of proceeding for such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderpurpose;
(p) otherwise use its best efforts to comply the extent reasonably required in writing by the lead managing underwriters with all applicable rules respect to an underwritten offering relating to the registration of Equity Securities having an aggregate value of at least $200,000,000, agree, and regulations cause the directors or officers of New Mylan to agree, to enter into customary agreements restricting the sale or distribution of Equity Securities during the period commencing on the date of the SEC, request (which shall be no earlier than fourteen (14) calendar days prior to the expected “pricing” of such underwritten offering) and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(acontinuing for not more than ninety (90) of the Securities Act, no later than 45 calendar days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 “final” prospectus (or “final” prospectus supplement if the underwritten offering is made pursuant to a Shelf Registration Statement), pursuant to which statements such underwritten offering shall cover said 12-month periodsbe made, plus an extension period, as may be proposed by the lead managing underwriters to address FINRA regulations regarding the publishing of research, or such lesser period as is required by the lead managing underwriters; and
(q) promptly prior use reasonable best efforts to take all other steps reasonably necessary to effect the registration of the Registrable Securities contemplated hereby. If any such registration or comparable statement refers to any Abbott Shareholder by name or otherwise as the holder of any securities of New Mylan and if any Abbott Shareholder is or would be reasonably expected to be deemed to be a controlling person of New Mylan, Abbott shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to Abbott and presented to New Mylan in writing, to the filing of any document which is to be incorporated effect that the holding by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 Abbott Shareholders of such securities is not to be construed as a recommendation by any Abbott Shareholder of the Company investment quality of New Mylan’s securities covered thereby and that such holding does not imply that any Abbott Shareholder shall assist in meeting any future financial requirements of New Mylan or (ii) in the event that such reference to any Abbott Shareholder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to such Abbott Shareholder; provided that with respect to this clause (ii) Abbott must furnish to New Mylan an opinion of counsel to such effect, which opinion and counsel shall be reasonably satisfactory to New Mylan. In connection with any Registration Statement in which the Abbott Shareholders are participating, Abbott shall furnish to New Mylan in writing such information and affidavits as New Mylan reasonably may from time to time reasonably request specifically for use in writingconnection with any such Registration Statement or prospectus. Each holder of Registrable Securities Abbott agrees by acquisition of such Registrable Securities that, that upon receipt of any notice from the Company New Mylan of the happening of any event of the kind described in Section 6(kclauses (f), (o)(ii), (o)(iii) hereofor (o)(iv) above, such holder will it shall forthwith discontinue its disposition of Registrable Securities pursuant to the applicable Registration Statement and the prospectus relating thereto until such holder's its receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 6(k) hereofclause (o)(ii), or until it is advised in writing (the "Advice") by the Company New Mylan that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in such prospectus; provided that New Mylan shall use its reasonable best efforts to supplement or amend the Prospectus, 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 such notice. In the event the Company applicable Registration Statement and prospectus as promptly as practicable and shall give any such notice, extend the time periods regarding under clause (a) above with respect to the maintenance length of time that effectiveness of a Registration Statement must be maintained by the amount of time that Abbott is required to discontinue disposition of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceSecurities.
Appears in 1 contract
Sources: Shareholder Agreement (Mylan B.V.)
Registration Procedures. In connection with Whenever the Company's registration obligations Stockholder requests that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its best commercially reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof. Pursuant thereto, and pursuant thereto the Company will as expeditiously as possible:
(a) in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder, prepare and file with the SECSecurities and Exchange Commission a registration statement, as soon as practicableand all amendments and supplements thereto and related prospectuses, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best commercially reasonable efforts to cause such Registration Statement registration statement to become effective; provided provided, that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered one counsel selected by such Registration Statement and the underwriters, if any, Stockholder copies of all such documents proposed to be filed, filed which documents will shall be subject to the reasonable review and comment of such holders and underwriterscounsel, and the Company will not file include in any Registration Statement registration statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by prospectus, as applicable, such Registration Statement additional information reasonably requested Stockholder, or the underwriters, if any, shall reasonably objectfor marketing purposes, whether or not required by applicable securities laws;
(b) notify Stockholder of the effectiveness of each registration statement (including a Shelf Registration Statement) filed hereunder and prepare and file with the SEC Securities and Exchange Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, or lesser of (x) 180 days and (y) such shorter period which will terminate when all Registrable Securities covered by such Registration Statement the registration statement have been sold; 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; sold and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such registration statement; provided, that in the case of the Shelf Registration Statement or supplement to the Prospectus; Statement, the Company shall not be deemed to have used its best use commercially reasonable efforts to keep a such Shelf Registration Statement continuously effective during under the applicable period if it voluntarily takes any action that would result Securities Act in selling holders order to permit the prospectus forming part of the Shelf Registration Statement to be usable by the Stockholder until the earlier of (a) the date upon which all Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement and for valid business reasons, including without limitation (b) the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicabledate upon which all included securities have ceased to be Registrable Securities;
(c) notify furnish to Stockholder thereunder such number of copies of such registration statement, each amendment and supplement thereto, the selling holders of Registrable Securities prospectus included in such registration statement (including each preliminary prospectus), each Free Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein owned by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingStockholder;
(d) make every use commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch seller; provided provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction or to take any action which would subject it (iii) consent to general service of process (i.e., service of process which is not limited solely to securities law violations) in any such jurisdiction where it is not then so subjectjurisdiction;
(e) notify Stockholder (i) cooperate with promptly after it receives notice thereof, of the selling holders 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 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 Registrable any request by the Securities and Exchange Commission for the managing underwritersamendment or supplementing of such registration statement or prospectus or for additional information, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities (iii) at any time when a prospectus relating thereto is required to be sold and not bearing any restrictive legends; and enable such Registrable delivered under the Securities to be in such denominations and registered in such names as Act, of the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence happening of any event contemplated by paragraph (c)(6) abovethe result of which 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 not misleading, and in such event, at the request of any such seller, the Company will promptly prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lf) prepare and file promptly with the Securities and Exchange Commission, and notify the Stockholder 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 not misleading, and, in case the Stockholder or any underwriter for the Stockholder 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, the Company shall use commercially reasonable efforts to prepare promptly upon request of the Stockholder 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;
(g) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of listed;
(h) provide a majority of transfer agent and registrar for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(ni) enter into and perform such customary agreements (including an underwriting agreementagreements in customary form) and take all such other actions in connection therewith as the Stockholder reasonably requests in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited towithout limitation, those set forth participation in the Purchase Agreement; (2) obtain opinions of counsel to the Company “road shows,” investor presentations and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereundermarketing events);
(oj) make available at reasonable times for inspection by a representative of the holders of a majority of the Registrable SecuritiesStockholder, any underwriter participating in any disposition pursuant to such registration, registration statement and any attorney attorney, accountant or accountant other agent retained by the sellers any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that any records, information or documents that are designated registration statement subject to the applicable Person(s) executing a nondisclosure agreement in reasonable form and substance if reasonably required by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderCompany;
(pk) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SECSecurities and Exchange Commission, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement (or, if such information is not available, the most recently available information), which earnings statement shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder;
(l) permit the Stockholder which, no later than 45 days after the end of any 12-month period (in its sole and exclusive judgment, might be deemed to be an underwriter or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, beginning with the first month controlling Person of the Company's first fiscal quarter commencing , to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of the Stockholder and its counsel should be included;
(m) use 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 Equity 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 Stockholder of such stop order or other such order promptly after it shall receive notice or obtain knowledge thereof and shall use commercially reasonable efforts to promptly obtain the withdrawal of such order;
(n) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(o) use commercially reasonable efforts to obtain and to provide to the underwriters managing the registered public offering with a copy to the Stockholder if it is participating in such registration a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the Stockholder reasonably requests;
(p) provide a legal opinion of the Company’s outside counsel to the underwriters managing the registered public offering, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the Registration Statementdate of the closing under the underwriting agreement), which statements shall cover said 12-month periodswith respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and
(q) promptly prior use commercially reasonable efforts to cooperate in a timely manner with a request of the Stockholder in respect of any block trade or other transaction that is registered pursuant to a Shelf Registration Statement that is not a firm commitment underwritten offering (each, an “Alternative Transaction”), including entering into customary agreements with respect to such Alternative Transactions (and providing customary representations, warranties, covenants and indemnities in such agreements) as well as providing other reasonable assistance in respect of such Alternative Transactions of the type applicable to a public offering subject to Section 4, to the filing extent customary for such transactions. If any such registration or comparable statement refers to any holder by name or otherwise as the holder of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing securities of the Registration Statement)Company and if, provide copies of such document to counsel to the selling holders of Registrable Securities in its sole and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereofexclusive judgment, such holder will forthwith discontinue disposition is or might be deemed to be a controlling Person of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 deliver shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such holder and presented to the Company (at 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 expense’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) all copies, other than permanent file copies in the event that such reference to such holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to such holder's possession; provided, of the Prospectus covering that with respect to this clause (ii), such Registrable Securities current at the time of receipt of such notice. In the event holder shall furnish to the Company shall give any an opinion of counsel to such noticeeffect, the time periods regarding the maintenance of such Registration Statement which opinion and counsel shall be extended by reasonably satisfactory to the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the AdviceCompany.
Appears in 1 contract
Sources: Registration Rights Agreement (Inhibikase Therapeutics, Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts to effect such registration to permit will:
(a) Prepare and file with the SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act available for the sale of such the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause each such Registration Statement to become effective; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents and will be subject to the reasonable review of provide such holders a reasonable period of time to review and underwriters, and comment on such documents (or have counsel do the same). The Company will not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectobject on a timely basis;
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable required period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldif any; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablesupplemented;
(c) notify Notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and their counsel promptly (if requested by any such Person) confirm such advice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company 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 exemption from qualification of any proceeding for such purpose and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.of
Appears in 1 contract
Sources: Additional Investor Registration Rights Agreement (G Cj Investments Lp)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofof the Company under Sections 3, 4 and 5, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements with respect to such Registrable Securities on any appropriate registration form under adopted by the Securities ActSEC 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 or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use reasonable best efforts to cause such Registration Statement to become and remain effective; provided that before that, at least five Business Days prior to filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto, the Company will shall furnish to a single counsel selected by the holders Holders of a Majority of the Registrable Securities covered by included or to be included in such Registration Statement and the underwriters, if any, copies of all such documents Registration Statement or Prospectus (or amendment or supplement) as proposed to be filedfiled (including, upon the request of such counsel, documents to be incorporated by reference therein) which documents will shall be subject to the reasonable review and comments of such holders counsel and underwritersthe Holders of the Registrable Securities included or to be included in such Registration Statement during such five-Business-Day period, and the Company will shall not file any Registration Statement or amendment thereto or Statement, any Prospectus or any amendment or supplement thereto (or any such documents incorporated by reference) containing any statements with respect to any such Holder to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Holder shall reasonably objectobject in writing;
(b) prepare and file with the SEC such amendments and post-effective amendments to the such Registration Statement and such amendments and supplements to the Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the 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 the such Registration Statement effective for until the applicable period, or such shorter period earlier of (i) the date on which will terminate when all the Registrable Securities covered by such Registration Statement cease to be Registrable Securities or have been sold; sold or withdrawn and (ii) subject to Sections 9(e) and 9(k), (x) in the case of the Shelf Registration, until the third anniversary of the date of initial effectiveness of the Shelf Registration Statement, plus any Suspension Periods (which shall be added to such three-year period), or (y) in the case of a Registration Statement filed pursuant to Section 4 which does not contemplate an Underwritten Offering, for at least 120 days or (z) in the case of a Registration Statement filed pursuant to Section 4 which contemplates an Underwritten Offering, for at least 120 days plus such longer period (not to exceed 90 days after the 120th day) as, in the opinion of counsel for the underwriter or underwriters of such Underwritten Offering, is required by law for the delivery of a Prospectus in connection with the sale of Registrable Securities by an underwriter or dealer, and cause the Prospectus to be supplemented by any required Prospectus supplement, and 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 until such time as is specified in clause (i) or (ii) above, as the case may be;
(c) furnish to each Holder of such Registrable Securities such number of copies of such Registration Statement and of each amendment and post-effective amendment thereto, any Prospectus or Prospectus supplement and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in Section 10(b)) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(d) use reasonable 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 Holder shall reasonably request, and to do any and all other acts and things which may be reasonably necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder, except that the Company shall not be required for any such purpose to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 9(d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Holder 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 the applicable period referred to in accordance with Section 9(b), that the intended method Company has become aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of material fact or methods omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of distribution by the sellers thereof set forth circumstances then existing (the period during which the Holders are required in such case pursuant to Section 10(b) to refrain from effecting public sales or distributions of Registrable Securities referred to herein as a "Section 9(e) Period"), and prepare and furnish to such Holder, as soon as reasonably practicable, without charge to such Holder, a reasonable number of copies of an amendment to such Registration Statement or supplement to such related Prospectus as may be necessary so that, as thereafter delivered to the Prospectuspurchasers 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 that if the Company gives such notice, the Company shall not be deemed to have used its best efforts to keep a extend the period during which such Registration Statement shall be maintained effective during (including the applicable period if it voluntarily takes any action that would result periods referred to in selling holders Section 9(b)) by the number of days in the Section 9(e) Period;
(f) promptly notify each Holder of Registrable Securities covered thereby not being able to sell by such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Registration Statement at any time,
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, filed and, with respect to the Registration Statement or any post-effective amendment, when the same Registration Statement or such post-effective amendment has become effective, ;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission 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 that purpose, such purposes; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by of the Company of any written notification with respect to of 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 and purpose;
(6g) make available to its stockholders, as soon as reasonably practicable, an earnings statement which shall satisfy the provisions of Section 11(a) of the happening Securities Act, provided that the Company shall be deemed to have complied with this Section 9(g) if it has complied with Rule 158 under the Securities Act;
(h) if the 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 reasonable best efforts to obtain 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" letters and bring-downs thereof from the Company's independent certified public accountants addressed to the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by independent accountants in connection with Underwritten Offerings; and
(iv) deliver such documents and certificates as may be reasonably requested by the managing underwriters to evidence compliance with any event which makes any statement made customary conditions contained in the underwriting agreement;
(i) cooperate with the Holders of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing the securities to be sold under such Registration Statement, and enable such securities to be in such denominations and registered in such names as the Prospectus managing underwriter or any document incorporated therein by reference untrue underwriters or which requires the making of any changes in the Registration Statementagents, the Prospectus if any, or any document incorporated therein by reference in order to make the statements therein not misleadingsuch Holders, may request;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(ej) if reasonably requested by the managing underwriter or underwriters or a holder Holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriters and the holders WCAS Holders of a majority Majority of the Registrable Securities being sold by all WCAS Holders 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 number principal amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering Underwritten Offering of the Registrable Securities to be sold in such offering; offering and make all required filings of such Prospectus supplement or post-effective amendment as soon as upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fk) furnish to each selling holder in the event of Registrable Securities and each managing underwriter, without charge, at least one signed copy the issuance of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement and Statement, or of 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment order suspending or supplement thereto as such Persons may reasonably request; the Company consents to preventing the use of the any related Prospectus or suspending the qualification of any amendment or supplement thereto by each of the selling holders of Registrable Securities and included in the underwritersRegistration Statement for sale in any jurisdiction, if any, in connection with use reasonable best efforts to obtain at the offering and sale of earliest practicable time the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification withdrawal of such Registrable Securities for offer stop order or other order (the period between the issuance and sale under the securities withdrawal of any stop order or blue sky laws of such jurisdictions other order referred to herein as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementa "Section 9(k) Period"); provided that the Company shall extend the period during which such Registration Statement will not be required maintained effective (including the periods referred 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;
(iSection 9(b)) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable number of days in the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kSection 9(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleadingPeriod;
(l) use reasonable best efforts to cause all Registrable Securities Common Stock covered by the such Registration Statement to be listed on each any securities exchange or automated quotation system on which similar securities issued by the Company are Common Stock is then listed, if such Common Stock is not already so listed and if requested by such listing is then permitted under the holders of a majority rules of such Registrable Securities securities exchange or the managing underwriters, if anyautomated quotation system;
(m) in the case of an Underwritten Offering, cause the senior executive officers of the Company to participate in the customary "road show" presentations that may be reasonably requested by the lead managing underwriter in any such Underwritten Offering and otherwise to cooperate with and participate in customary selling efforts related thereto;
(n) upon the request of any Holder, promptly amend any Shelf Registration Statement or take such other action as may be necessary to de-register, remove or withdraw all or any portion of the Holder's Registrable Securities from a Shelf Registration Statement, as requested by such Holder;
(o) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and and, unless such Registrable Securities shall be registered in book-entry form, provide the applicable trustee(s) or transfer agent(s) agent and registrar for such Registrable Securities with printed certificates for the Registrable Securities Securities, which are certificates shall be in a form eligible for deposit with Depositary The Depository Trust Company;
(np) enter into such agreements (including an underwriting agreement) provide and take cause to be maintained a transfer agent and registrar for all such other actions in connection therewith in order to expedite or facilitate Registrable Securities covered by the disposition applicable Registration Statement from and after a date not later than the effective date of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Registration Statement;
(1q) make such representations available upon reasonable notice at reasonable times and warranties to for reasonable periods for inspection by one representative appointed by the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders Holders of a majority Majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the applicable Registration Statement, by any managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement underwriter or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter underwriters participating in any disposition Underwritten Offering to be effected pursuant to such registrationRegistration Statement, and by any attorney attorney, accountant or accountant other agent retained by the sellers such Holders or any such managing 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 during normal business hours to discuss the business of the Company and to supply all information reasonably requested by any such representative, underwriter, attorney Holders or accountant managing underwriter or agent thereof in connection with such registration; provided that any records, information or documents that are designated by the Company in writing Registration Statement as confidential shall be kept confidential by necessary to enable such Persons unless disclosure of such records, information or documents is required to exercise their due diligence responsibility (subject to the entry by court or administrative ordereach Person referred to in this Section 9(q) into customary confidentiality agreements in a form reasonably acceptable to the Company);
(pr) otherwise use its best efforts to comply with all applicable rules and regulations if requested in writing by Holders holding a Majority of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters included 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 prepare and file with the SEC amendments and post-effective amendments to such Registration Statement and amendments and supplements to the Prospectus used in connection with such Registration Statement as shall cover said 12be necessary to enable any transferee of Registrable Securities included in such Registration Statement who becomes a Holder under this Agreement to resell such Holder's Registrable Securities pursuant to such Registration Statement, to the extent that such amendments, post-month periodseffective amendments and supplements shall be required for such transferee- Holders to be named as selling securityholders in such Registration Statement and Prospectus; and
(qs) promptly prior use reasonable best efforts to take all other steps necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing registration of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicehereby.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 2 hereof, the Company will use its best commercially reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible, with its own counsel:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements relating to the applicable registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by of the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDCompany, and use best commercially reasonable efforts to cause such Registration Statement to become effectiveeffective as soon as possible; provided that before the Company shall have the right to delay filing or effectiveness of a Registration Statement filed pursuant to Section 2(a) hereto or Prospectus the commencement of a public distribution of Registrable Securities, as applicable, for up to 60 days if the Company's Board of Directors determines, in good faith, that the filing or any amendments effectiveness thereof or supplements theretothe commencement of such public distribution could materially interfere with a pending extraordinary transaction involving the Company or bona fide financing plans of the Company or would require disclosure of information, the Company will furnish premature disclosure of which would be materially detrimental to the holders best interests of the Registrable Securities covered by such Registration Statement and Company, so long as the underwritersCompany promptly thereafter complies with the requirements of Section 5(j) hereof, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectapplicable;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable periodtwo years, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best commercially reasonable efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby Stockholder not being able to sell such Registrable Securities during that period unless such action is required under applicable law, ; provided that the Company shall be entitled to defer filing any of the foregoing shall not apply to actions taken by for a period of sixty (60) days if the Company shall in good faith and for valid business reasonsreasons defer such filings, including which valid business reasons shall include, without limitation limitation, the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k)5(j) hereof, if applicable;
(c) notify the selling holders of Registrable Securities Stockholder and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (ol) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringupon demand, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities Stockholder and each managing underwriter, without charge, at least one original signed copy of the Registration Statement and any post-post effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by referencereference and such number of conformed copies of such documents as such parties may reasonably request);
(gf) deliver to each selling holder of Registrable Securities Stockholder and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities Stockholder and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hg) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable SecuritiesStockholder, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller Stockholder or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(ih) cooperate with the selling holders of Registrable Securities Stockholder and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(ji) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof Stockholder or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kj) promptly upon the occurrence of any event contemplated by paragraph Section 5(a), 5(b) or 5(c) (c)(66) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(lk) cause all Registrable Securities covered by the Registration Statement to be listed or approved for listing on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anyand approved for quotation;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nl) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionconnection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Underwritten Registration, (1) make such representations representations, warranties, covenants and warranties indemnities to the holders of such Registrable Securities Stockholder and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreementofferings; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if anyStockholder, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such holders Stockholder and underwriters); and (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities Stockholder and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderUnderwritten Offerings;
(om) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings as soon as reasonably practicable, earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act), no later than 45 covering any 12-month period (or 90 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best reasonable efforts underwritten offering, or offering and (2ii) if not sold to underwriters in such an offering, beginning with commencing on the first month day of the Company's first fiscal quarter commencing of the Company after the effective date of the a Registration Statement;
(n) cooperate with 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 National Association of Securities Dealers, which statements shall cover said 12-month periodsInc. (the "NASD");
(o) keep the Stockholder advised of the status of any registration statement filed under Section 2 and coordinate the effective date of such registration statement with the Stockholder; and
(qp) promptly prior take such other lawful actions as shall be reasonable to facilitate the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing registration of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestSecurities. The Company may require each seller of Registrable Securities as to which any registration is being effected Stockholder to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder writing and to enter into agreements related to the distribution of the Registrable Securities agrees that are designed to insure compliance with the Exchange Act. The Stockholder hereby agree 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(k5(c) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5(j) hereof, or until it is advised in writing (the "Advice") 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, 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 such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance effectiveness of such Registration Statement Statements set forth in Section 2 hereof and Section 5(b) hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(65(c) (6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement the Stockholder shall have received the receive copies of the supplemented or amended prospectus contemplated by Section 6(k5(j) hereof or the Advice.
Appears in 1 contract
Sources: Registration Rights Agreement (Home Security International Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 under Article II hereof, the Company will use its best efforts to shall effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof disposition thereof, and pursuant thereto the Company shall include all financial statements required as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration Statements on the form specified in this Agreement or, if no form has been specified, on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the SEC to be filed therewith, cooperate and assist holders thereof in any filings required to be made accordance with the NASDintended method or methods of distribution thereof, and use all commercially reasonable best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided provided, that before filing a any such Registration Statement or Prospectus or any amendments or supplements thereto, thereto (other than documents that would be incorporated or deemed to be incorporated therein by reference and that the Company will is required by applicable securities laws or stock exchange requirements to file) the Company shall furnish to the holders of Registrable Securities, the Registrable Securities covered by such Registration Statement Special Counsel and the underwritersManaging Underwriters of such offering, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of the holders of Registrable Securities, the Special Counsel and such holders and underwritersManaging Underwriters, and the Company will shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (other than such documents which, upon filing, would be incorporated or deemed to be incorporated by reference therein and that the Company is required by applicable securities laws or stock exchange requirements to file) to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Special Counsel shall reasonably object;object in writing within two (2) full Business Days after receipt of such materials.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified in Article II; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify Notify the selling holders of Registrable Securities Securities, the Special Counsel and the managing underwritersManaging Underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice notice in writing, (1i) when the Prospectus or a Prospectus, any Prospectus supplement supplement, a Registration Statement, an amendment or a post-effective amendment to a Registration Statement has been filedfiled with the SEC, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, and of the contents of such request, (3iii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation or threatening of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6v) of the existence of any fact or happening of any event which makes any statement made of a material fact in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which requires would require the making of any changes in the Registration Statement or Prospectus in order that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not 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 or omit to state 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, provided that the Company shall not be required to disclose such fact or event if such fact or event has not been, and is not required to be, publicly disclosed, and (vi) of the Company's determination that a post-effective amendment to a Registration Statement or supplement to a Prospectus would be appropriate.
(d) make every Use all commercially reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;.
(e) if If reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringSecurities, promptly incorporate in a Prospectus supplement the Special Counsel, the Managing Underwriters, if any, or post-effective amendment such information as the managing underwriters and requested by the holders of a majority of the Registrable Securities being sold sold, (i) promptly incorporate in a Prospectus supplement or amendment or post-effective amendment to a Registration Statement such information as the holders of Registrable Securities, the Special Counsel, the Managing Underwriters, if any, or such holders, in connection with any offering of Registrable Securities, agree should be included therein relating to the plan of distribution with respect to such Registrable Securitiesas required by applicable law, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such amendment or post-effective amendment as soon promptly as notified is practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; provided, that the Company shall not be required to take any actions under this Section 4.1(e) that are not, in the reasonable opinion of counsel for the Company, in compliance with or required by applicable law.
(f) furnish Furnish to each selling holder of Registrable Securities Securities, the Special Counsel, and each managing underwriterManaging Underwriter, if any, without charge, at least one signed conformed copy of the Registration Statement or Statements and any post-effective amendment thereto, including financial statements and but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated unless requested in writing by referencesuch holder, Special Counsel or Managing Underwriter);.
(g) deliver Deliver to each selling holder of Registrable Securities Securities, the Special Counsel, and the underwriterseach Managing Underwriter, if any, in connection with any offering of Registrable Securities, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; and the Company hereby consents to the use of the such Prospectus or any each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the any offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling holders of Registrable Securities, the underwritersManaging Underwriters, if any, and their respective counsel the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller selling holder or underwriter Managing Underwriter reasonably requests in writing to the Company; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject;.
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of a selling holder of Registrable Securities, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller selling holder or sellers holders thereof or the underwritersManaging Underwriters, if any, to consummate the disposition of such Registrable Securities;.
(kj) During any Selling Period (other than during a Deferral Period), immediately upon the existence of any fact or the occurrence of any event contemplated by paragraph (c)(6) aboveas a result of which a Registration Statement shall 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, or a Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, promptly notify the holders, Special Counsel and any Managing Underwrite to discontinue use of such Registration Statement; promptly prepare a supplement and file an amendment or posteffective post-effective amendment to the each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document (such as a Current Report on Form 8-K) that would be incorporated by reference into the Registration Statement so that, as thereafter delivered to that the purchasers of the Registrable Securities, the Prospectus will Registration Statement shall not contain an 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;
(l) cause all , and so that the Prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities covered by being sold thereunder, and, in the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders case of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the post-effective date of the amendment to a Registration Statement, provide a CUSIP number for use all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;commercially reasonable best efforts to cause it to become effective as promptly as is practicable.
(nk) enter Enter into such agreements (including including, in the event of an Underwritten Offering, an underwriting agreementagreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including, in the event of an underwritten offering, those reasonably requested by the Managing Underwriters, if any, or the holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into into, and whether or not if the registration is an underwritten registration registration, (1i) make such representations and warranties warranties, subject to the Company's ability to do so, to the holders of such Registrable Securities and the underwritersunderwriters with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwritersManaging Underwriters, if any, Special Counsel and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and of the underwriters, if any, underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders Special Counsel and underwritersManaging Underwriters; (3iii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or any business acquired or to be acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to each of the selling holders of Registrable Securities and the underwritersManaging Underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said SectionUnderwritten Offerings; and (5iv) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold sold, the Special Counsel and the managing underwritersManaging Underwriters, if any, to evidence compliance with the continued validity of the representations and warranties of the Company and its subsidiaries made pursuant to clause (ki) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(ol) If requested in connection with a disposition of Registrable Securities pursuant to a Registration Statement, make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesSecurities being sold, any underwriter Managing Underwriter participating in any disposition pursuant to such registrationof Registrable Securities, if any, and any attorney or accountant retained by the sellers such selling holders or underwriter, all financial and other records, pertinent corporate documents and properties of the CompanyCompany and its subsidiaries, and cause the Company's executive officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, underwriterManaging Underwriter, attorney or accountant in connection with such registrationdisposition; provided subject to reasonable written assurances by each such person that any records, such information or documents that are designated by the Company will only be used in writing as confidential shall be kept confidential by connection with matters relating to such Persons unless disclosure of such records, information or documents is required by court or administrative order;Registration Statement.
(pm) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings holders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act, ) no later than 45 forty-five (45) days after the end of any 12-month twelve (12)-month period (or 90 days, ninety (90) days after the end of any twelve (12)-month period if such period is a fiscal year) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering, or and (2ii) if not sold to underwriters in such an offering, beginning with commencing on the first month day of the Company's first fiscal quarter of the Company commencing after the effective date of the a Registration Statement, which statements shall cover said 12-month twelve (12)-month periods; and.
(qn) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to Cooperate with the selling holders of Registrable Securities to facilitate the timely preparation and to the managing underwriters, if any, make the Company's representatives available for discussion delivery of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of certificates representing Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, sold 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.not bearin
Appears in 1 contract
Registration Procedures. In connection with Whenever the Company's registration obligations Company is required ----------------------- to register Registrable Securities pursuant to Section 3 1 or 2 hereof, the Company will use its reasonable best efforts to effect such the registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, Commission as soon as practicable, practicable a Registration Statement with respect to such Registrable Securities as prescribed by Section 1 or Registration Statements 2 on any appropriate a form under the Securities Act, which form shall be available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause each such Registration Statement to become effectiveand remain effective until all such Registrable Securities are sold by the Holders thereof; provided provided, however, that before -------- ------- filing a Registration Statement or Prospectus or any amendments or supplements theretoStatement, the Company will furnish to the holders Holders of the Registrable Securities covered by such Registration Statement and Statement, the underwriters, if any, and any attorney, accountant or other agent retained by any such Holder of Registrable Securities or underwriters (i) copies of all such documents proposed to be filed, which documents will be subject to the reasonable review and comment of such holders Holders, their counsel and underwriters, if any, and (ii) if requested, financial and other information required by the Commission to be included in such Registration Statement and all financial and other records, pertinent corporate documents and properties of the Company customarily reviewed in connection with an underwritten registration; and shall cause the officers, directors and employees of the Company, counsel to the Company and independent certified public accountants of the Company, to respond to such reasonable inquiries and supply all information, as shall be reasonably necessary, in the opinion of respective counsel to such Holders and underwriters, to conduct a reasonable investigation within the meaning of the Securities Act, and will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of at least a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments, post- effective amendments and post-effective amendments prospectus supplements to the such Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period until such time as all of such securities have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any and take no action that would result results in the selling holders Holder of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableperiod;
(c) notify the furnish to each selling holders Holder of Registrable Securities covered by a registration statement and the managing underwritersto each underwriter, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings copies of such Prospectus supplement or post-effective registration statement, each amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus prospectus included in such registration statement (including each preliminary prospectus) prospectus and any amendment or supplement thereto to such prospectus and any other prospectus filed under Rule 424 of the Securities Act), in each case including all exhibits, and such other documents as such Persons seller may reasonably request; request in order to facilitate the disposition of the Registrable Securities owned by such seller or to be disposed of by such underwriter (the Company consents hereby consenting to the use in accordance with all applicable law of the Prospectus each such registration statement (or any amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement thereto thereto) by each of the selling holders of Registrable Securities such seller and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus such registration statement or any amendment or supplement theretoprospectus);
(hd) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or and, if applicable, to cooperate with the selling holders Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of (or exemption from such Registrable Securities registration or qualification) of, the securities to be included in a Registration Statement for offer and sale under the securities or blue sky laws of such jurisdictions within the United States of America as any seller selling Holder or underwriter managing underwriters (if any) shall reasonably requests in writing request, to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities securities covered by the applicable Registration Statement; provided provided, that the Company will not be required to (i) qualify -------- generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this paragraph or to take any action which would subject it (ii) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(ie) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable cause all 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by of the Company same class as the Registrable Securities are then listed and, if requested by not so listed, to be listed on the holders NASD automated quotation system and, if listed on the NASD automated quotation system, use its reasonable best efforts to secure designation of a majority of all such Registrable Securities or covered by such Registration Statement as a NASDAQ Security within the managing underwritersmeaning of Rule 11Aa3-l under the Exchange Act or, if anyfailing that, to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to use its reasonable best efforts to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD;
(mf) provide a transfer agent and registrar for all such Registrable Securities and a CUSIP number for all such Registrable Securities not later than the effective date of such Registration Statement;
(g) comply with all applicable rules and regulations of the Commission, and make available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (or in each case within such extended period of time as may be permitted by the Commission for filing the applicable report with the Commission) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering or (ii) if not sold to underwriters in such an offering, commencing on the first day of the fiscal quarter of the Company after the effective date of a Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companyearnings statement shall cover said 12-month periods;
(nh) enter into such agreements (including permit any Holder which, in its sole and exclusive judgment, might be deemed to be an underwriting agreement) and take all such other actions underwriter or a controlling person of the Company, to participate in connection therewith in order to expedite or facilitate the disposition preparation of such Registrable Securities registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such Holder and its counsel should be included;
(i) use its best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or suspending the qualification (or exemption from qualification) of any of the securities included therein for sale in any jurisdiction within the United States of America, and, in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending the qualification of any securities included in such connectionRegistration Statement for sale in any jurisdiction within the United States of America, whether the Company will use its best efforts promptly to obtain the withdrawal of such order at the earliest possible moment;
(j) if the piggyback or not an underwriting agreement is entered into and whether or not the requested registration is an underwritten registration registration, obtain "cold comfort" letters and updates thereof (1which letters and updates (in form, scope and substance) make such representations and warranties shall be reasonably satisfactory to the holders managing underwriters, if any, and counsel to the selling Holders of such Registrable Securities Securities) from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants 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, if any, and each selling Holder of Registrable Securities, such letters to be in form, substance customary form and scope as are covering matters of the type customarily made by issuers to underwriters covered in primary "cold comfort" letters in connection with underwritten offerings and covering such other matters includingas the underwriters, but not limited toif any, those set forth in or the Purchase Agreement; Holders of a majority of the Registrable Securities being sold may reasonably request;
(2k) obtain opinions of independent counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and not objected to by the holders Holders of a majority of the Registrable Securities being sold) ), addressed to each selling holder Holder and each of the underwriters, if any, covering the matters customarily covered in opinions of issuer's counsel requested in underwritten offerings offerings, such as the effectiveness of the Registration Statement and such other matters as may be reasonably requested by such holders counsel and underwriters; , if any;
(3l) obtain "cold comfort" letters promptly (but in any event, within five business days) notify the selling Holders of Registrable Securities, their counsel and updates thereof the managing underwriters, if any, and confirm such notice in writing,
(i) when a prospectus or any supplement or post-effective amendment to such prospectus has been filed, and, with respect to a Registration Statement or any post-effective amendment thereto, 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,
(iii) 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 prospectus or the initiation of any proceedings by any Person for that purpose,
(iv) if at any time the representations and warranties of the Company contemplated by clause (i) of paragraph (q) below cease to be true and correct in any respect,
(v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities for offer or sale under the securities or blue sky laws of any jurisdiction, or the contemplation, initiation or threatening, of any proceeding for such purpose,
(vi) of the happening of any event that makes any statement made in such Registration Statement untrue in any material respect or that requires the making of any changes in such Registration Statement so that 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 under which they were made (in the case of any prospectus), not misleading, and
(vii) of the Company's independent certified public accountants addressed reasonable determination that a post- effective amendment to a Registration Statement would be appropriate;
(m) if requested by the managing underwriters, if any, or a Holder of Registrable Securities being sold, promptly incorporate in a prospectus, supplement or post-effective amendment such information as the managing underwriters, if any, and the Holders of a majority of the Registrable Securities being sold reasonably request to be included therein relating to the sale of the Registrable Securities, including, without limitation, information with respect to the number of shares of Registrable Securities being sold to underwriters, the purchase price being paid therefor by such 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 promptly following notification of the matters to be incorporated in such supplement or post- effective amendment;
(n) furnish to each selling holders Holder of Registrable Securities and the managing underwriter, without charge, at least one signed copy of the Registration Statement;
(o) cooperate with the selling Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities not bearing any restrictive legends and in a form eligible for deposit with The Depository Trust Company to be sold and cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holder of Registrable Securities may request at least three business days prior to any sale of Registrable Securities to the underwriters;
(p) as promptly as practicable upon the occurrence of any event contemplated by clause (vi) of paragraph (l) above, prepare a supplement or post-effective amendment to the Registration Statement, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold hereunder, the prospectus will not contain an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or prospectus or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(q) enter into such agreements (including underwriting agreements in customary form, scope and substance) and take all such other actions in connection therewith 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 registration or the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration:
(i) make such representations and warranties to the Holders of such Registrable Securities and the underwriters, if any, such letters with respect to be in customary form and covering matters the business of the type Company and the Registration Statement, in form, substance and scope as are customarily covered in "cold comfort" letters made by issuers to underwriters in connection with primary underwritten offerings; offerings and confirm the same, if and when requested;
(4ii) if an underwriting agreement is entered into, cause the same shall set forth in full to include the indemnification and contribution provisions and procedures substantially similar to (and no less favorable to the selling Holders of Registrable Securities and the underwriters than) those contained in Section 8 6 hereof with respect to all parties to be indemnified pursuant to said SectionSection (or, with respect to the indemnification of such underwriters, such similar indemnification and contribution provisions as such underwriters shall customarily require); and and
(5iii) the Company shall deliver such documents and certificates as may be reasonably requested by the holders Holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (ki) above and with any customary conditions contained in the underwriting agreement or other similar agreement entered into by the Company. The , it being understood that the above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection otherwise reasonably requested by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.so
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations (a) Whenever a Holder has requested that any Registrable Shares be registered pursuant to Section 3 hereofthe terms of this Agreement, the Company will use its best efforts to effect such the registration to permit and the sale of such Registrable Securities Shares in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(ai) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements registration statement on any the appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Shares and use its best efforts to cause such Registration Statement registration statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by effective as soon as practicable after such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectfiling;
(bii) prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, or and such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus prospectus usable and 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 with respect to the disposition of all securities covered by such Registration Statement during registration statement until such time as the applicable period Registrable Shares registered thereunder have been disposed of in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement registration statement; provided that, at least five business days prior to filing a registration statement or supplement to prospectus or any amendments or supplements thereto, excluding documents incorporated by reference after the Prospectus; initial filing of the registration statement, the Company shall not be deemed furnish to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders Holders of the Registrable Securities Shares covered thereby not being able to sell by such Registrable Securities during that period unless such action is required under applicable law, provided that registration statement (the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k“Selling Holders”), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities Selling Holders’ counsel and the underwriters, if any, without charge, as many draft copies of all such documents proposed to be filed, which documents will be subject to the Prospectus review of such Holders’ counsel and the underwriters, if any, and the Company will not, unless required by law, file any registration statement or amendment thereto or any prospectus or any supplement thereto to which Holders of at least a majority of the Registrable Shares covered thereby (the “Objecting Party”) shall reasonably object, pursuant to notice given to the Company prior to the filing of such amendment or supplement (the “Objection Notice”) and no later than five business days after receipt of the documents to which the Objection Notice relates. The Objection Notice shall set forth the objections and the specific areas in the draft documents where such objections arise. The Company shall have five business days after receipt of the Objection Notice to correct such deficiencies to the satisfaction of the Objecting Party, and will notify each Selling Holder of any stop order issued or threatened by the Commission in connection therewith and shall use its best efforts to prevent the entry of such stop order or to remove it at the earliest possible moment if entered;
(iii) furnish to each Selling Holder and the underwriters of the securities being registered such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons Selling Holder or underwriters may reasonably request; request in order to facilitate 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 connection with the offering and sale disposition of the Registrable Securities covered Shares owned by such Selling Holder or the Prospectus or any amendment or supplement theretosale of such securities by such underwriters;
(hiv) prior use its reasonable best efforts to any public offering comply with all applicable rules and regulations of Registrable Securities, the Commission and make generally available to the security holders as soon as practicable after the effective date of the applicable registration statement an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(v) use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale Shares under the such other securities or “blue sky sky” laws of such jurisdictions as any seller or underwriter Selling Holder reasonably requests in writing and do any and all other acts or and things which may be necessary or advisable desirable to enable such seller to consummate the public sale or other disposition in such jurisdictions of the Registrable Securities covered Shares owned by the Registration Statement; provided such Selling Holder (provided, however, that the Company will not be required to qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph or to take any action which would subject it consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction);
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, 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 not misleading;
(lvi) cause all such Registrable Securities covered by the Registration Statement Shares to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nvii) enter into such customary agreements (including an underwriting agreementagreements) and take all such other actions in connection therewith as a Selling Holder or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderShares;
(oviii) make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesSelling Holders, any underwriter participating in any disposition pursuant to such registrationregistration statement, and any attorney attorney, accountant or accountant retained other agent designated by the sellers any such Selling Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeSelling Holder, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationregistration statement; provided provided, however, that any such records, documents, properties and information or documents provided by the Company that are is designated in writing by the Company in writing good faith as confidential at the time of delivery of such records, documents, properties or information, as applicable, shall be kept confidential by all such Persons unless (x) disclosure thereof is made in connection with a court proceeding or required by law (provided, however that each such Person shall, upon learning that disclosure of such records, information documents, properties or documents information, as applicable, is sought in a court proceeding or required by court law, give notice to the Company to allow the Company to undertake appropriate action to prevent disclosure at the Company’s sole expense), or administrative order(y) such records, documents, properties or information, as applicable, has previously been made or becomes available to the public generally through the Company or through a third party without an accompanying obligation of confidentiality;
(pix) otherwise use its best cause the Company’s officers, directors and employees to participate in marketing efforts as reasonably requested by the underwriters, including participating in “roadshow” meetings with potential investors;
(x) notify each Selling Holder, promptly after it shall receive notice thereof, of the time when such registration statement has become effective or a supplement to comply any prospectus forming apart of such registration statement has been filed;
(xi) notify each Selling Holder of any request by the Commission for the amending or supplementing of such registration statement or prospectus or for additional information;
(xii) prepare and file promptly upon the request of any Selling Holder, any amendments or supplements to such registration statement or prospectus which, in the reasonable opinion of counsel selected by such Selling Holder, with all applicable the Commission as required under the Securities Act or Exchange Act or the rules and regulations thereunder and with the Registrar of Companies in Bermuda in accordance with Bermuda Companies Act 1981 (“Companies ▇▇▇ ▇▇▇▇”) and elsewhere as may be required under applicable law in connection with the distribution of Registrable Shares by such Selling Holder;
(xiii) prepare and promptly file with the Commission and the Registrar of Companies in Bermuda or elsewhere as may be required under any applicable law and promptly notify each Selling Holder of such Registrable Shares of the SECfiling of such amendment or supplement to such registration statement or prospectus as may be necessary to correct any statements or omissions if, and at the time when a prospectus relating to such securities is required to be delivered under the Securities Act or the Companies ▇▇▇ ▇▇▇▇ or under any applicable law, any event shall have occurred as the result of which any such prospectus would include an untrue statement of a material fact or omit to state any material fact necessary to make generally available to its security holdersthe statements therein, earnings statements satisfying in the provisions of Section 11(a) light of the Securities Actcircumstances in which they were made, no later than 45 days after not misleading;
(xiv) at the end request of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter Selling Holder in which Registrable Securities are sold to underwriters in a firm or best efforts connection with an underwritten offering, furnish on the date or dates provided for in the underwriting agreement a customary opinion of counsel, addressed to the underwriters and the Holders, covering such matters as such underwriters and Holders may reasonably request;
(2xv) if not sold to underwriters in such an offering, beginning with obtain “cold comfort” letters and updates thereof from the first month independent certified public accountants of the Company's first fiscal quarter commencing after the effective date Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing Company or of any document business acquired by the Company for which is financial statements and financial data are, or are required to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of be, included in the Registration Statement), provide copies of addressed to each Selling Holder (provided such document to counsel to Selling Holder furnishes the selling holders of Registrable Securities accountants with such representations as the accountants customarily require in similar situations) and to the managing underwriters, if any, make in customary form and covering matters of the Company's representatives available for discussion of type customarily covered in “cold comfort” letters in connection with underwritten offerings; and
(xvi) deliver such document documents and make such changes certificates as may be reasonably requested by the Selling Holders and the underwriters, including those to evidence compliance with any customary conditions contained in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. underwriting agreement.
(b) The Company may require each seller of Registrable Securities as to which any registration is being effected the Holders to furnish to the Company such information regarding the distribution of such securities and such other information relating to the Holders participating in such distribution and the ownership by the Holders of Registrable Shares as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of Holder shall furnish 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 deliver information 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 and cooperate with the Company shall give any such notice, as reasonably necessary to enable the time periods regarding Company to comply with the maintenance provisions of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advicethis Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Assured Guaranty LTD)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section Sections 3 and 4 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwritersunderwriters (it being understood that, with respect to the holders of the Registrable Securities, such review shall be completed as expeditiously as possible), and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC a Registration Statement or Registration Statements relating to the applicable Demand Registration or Piggyback Registration including all exhibits and financial statements required by the SEC to be filed therewith, and use its best efforts to cause such Registration Statement to become effective under the Securities Act; and prepare and file with the SEC such amendments and post-effective amendments to such Registration Statement, and such supplements to the Registration Statement Prospectus, as may be reasonably requested by any holder of Registrable Securities or any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations otherwise necessary to keep the Registration Statement effective for the applicable period, 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 soldsold or withdrawn) with respect to a Piggyback Registration, and for a period continuing during the Registration Period with respect to a Demand Registration, or, if such Registration Statement relates to an Underwritten Offering, such longer period as in the opinion of counsel for the underwriters a Prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer; and 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 and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, ,
(1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, ,
(3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, ,
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, ,
(5) of the receipt by the Company 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 and purpose, and
(6) of the happening existence of any event fact which makes any statement made results in the Registration Statement, the Prospectus or any document incorporated therein by reference containing an untrue statement of material fact or which requires the making of any changes in the Registration Statement, the Prospectus omitting to state a material fact required to be stated therein or any document incorporated therein by reference in order necessary to make the statements therein 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 moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing 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 number amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including including, if requested, those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto) and such other documents as such selling holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such holder and underwriters, if any;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller selling holder of Registrable Securities or any underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of if any event fact contemplated by paragraph (c)(6) aboveabove shall exist, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on the New York Stock Exchange (the "NYSE") or, if not listed on the NYSE, (i) to be listed on each securities exchange on which similar securities issued by the Company are then listed or (ii) to be quoted on the Nasdaq National Market, if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) cause the Registrable Securities covered by the Registration Statement to be rated with the appropriate rating agencies, if so requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(n) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Registerable Securities which are in a form eligible for deposit with Depositary Trust Company;
(no) enter into such agreements (including an underwriting agreementagreements) and take all such other appropriate actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten Underwritten Registration, deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with paragraph (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company, and if an underwriting agreement is entered into or if the registration is an Underwritten Registration:
(1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings Underwritten Offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; Agreement and Plan of Reorganization and Merger dated as of the date hereof by and among the Investor, the Company and V-L ▇▇▇dings Corp.;
(2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such holders and underwriters; ;
(3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offeringsUnderwritten Offerings; and
(4) if an underwriting agreement is entered into, cause the same shall to set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at the effectiveness of such Registration Statement, each closing under such any underwriting or similar agreement or as and to the extent required thereunderthereunder and from time to time as may be requested by any selling holder in connection with the disposition of Registrable Securities pursuant to such Registration Statement;
(op) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such the registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(pq) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offeringan Underwritten Offering, or (2) or, if not sold to underwriters in such an offering, offering and (2) 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 12-month periods;
(r) cooperate and assist in any filings required to be made with the NASD 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 the NASD); and
(qs) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request; it being understood that any document filed pursuant to the Exchange Act will be provided concurrently with such filing and will not be subject to prior review before filing. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.Prospe
Appears in 1 contract
Sources: Registration Rights Agreement (Valuevision International Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofof any Registrable Securities hereunder, the Company will use its best efforts to shall effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof as prescribed herein and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided that before filing a any Registration Statement or Prospectus or any amendments or supplements thereto, the Company will shall furnish to and afford the holders Holders of the Registrable Securities, counsel for the Holders (the "Holders Counsel") and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (at least 5 business days prior to such filing). The Company shall not file any Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Holders must be afforded an opportunity to review prior to the filing of such document, if the Holders of a majority in aggregate principal amount of the Registrable Securities covered by such Registration Statement and Statement, the underwritersHolders Counsel, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the managing underwriters, if any, shall reasonably object;. Liquidated Damages will not be paid with respect to any period during which the Registration Statement shall cease to be effective or usable by reason of the objection of the Holders of majority of Registerable Securities, or a managing underwriter selected by the Holders, to the filing of any amendment or supplement to any registration statement or prospectus.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement effective for and to comply with the applicable period, or such shorter period which will terminate when provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement until such time as all of the securities have been solddisposed 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 two years after the Registration Statement becomes effective, excluding any periods during which the SEC shall have issued any stop order with respect to such Registration Statement; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method as so amended or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the ProspectusProspectus as so supplemented; the Company shall not be deemed not to have used its best efforts to keep a Registration Statement effective during the applicable period Effectiveness Period if it voluntarily takes any action that would result in selling holders the Holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under by applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;.
(c) notify Notify the selling holders Holders of Registrable Securities Securities, the Holders Counsel and the managing underwriters, if any, promptlypromptly (but in any event within two business days), and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a 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 additional information, (3ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation of any proceedings for that purpose, (4iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by paragraph (oSection 3(l) below cease to be true and correct, (5iv) of the receipt by any officer or representative of the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities for offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose and purpose, (6v) of the happening of any event which or any information becoming known that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not 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 under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) make every reasonable effort Use its best efforts to obtain prevent the withdrawal issuance of any order suspending the effectiveness of the a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, and, if any such order is issued, to use its best efforts to obtain the withdrawal of any such order at the earliest possible moment;.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or the Holders of a holder majority in aggregate principal amount at maturity of the Registrable Securities being sold in connection with an underwritten offeringsubject to the Registration Statement, (i) promptly incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should underwriters, if any, or such Holders or counsel reasonably request to be included therein relating to the plan of distribution with respect to such Registrable Securitiestherein, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received notification of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;, and (iii) supplement or make amendments to such Registration Statement.
(f) furnish Furnish to each selling holder Holder of Registrable Securities and to the Holders Counsel and each managing underwriter, if any, without charge, at least one signed conformed copy of the Registration Statement or Registration Statements and any each post-effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated by reference);exhibits.
(g) deliver Deliver to each selling holder Holder of Registrable Securities Securities, their counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and any each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 3, the Company hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders Holders of Registrable Securities and the underwritersunderwriters or agents, if any, and dealers (if any), in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, to use its best efforts to register or qualify or qualify, and to cooperate with the selling holders Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller Holder or underwriter the managing underwriters, if any, reasonably requests request in writing as are reasonably necessary to permit the offer and sale of such Securities in such jurisdictions, provided that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 3(h); keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; , provided that the Company will shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or to qualified, (B) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;subject or (C) subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction.
(i) cooperate Cooperate with the selling holders Holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and sold, which certificates shall not bearing bear any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriters, if any, or Holders may request at least two business days prior to any sale of Registrable Securities to the underwriters;reasonably request.
(j) use Use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;, except as may be required solely as a consequence of the nature of such Holder's business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals.
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(6Section 3(c)(v) or 3(c)(vi) above, as promptly as practicable prepare and (subject to Section 3(a) above) file with the SEC, at the expense of the Company, a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Securities being sold thereunder any such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) cause all In the event of an underwritten offering of Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwritersSecurities, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) agreement as is customary in underwritten offerings and take all such other actions in connection therewith as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1i) make such representations and warranties to the holders underwriters, with respect to the business of such Registrable Securities the Company and its subsidiaries and the underwritersRegistration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in formeach case, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings offerings, and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof (which counsel in form and opinions (in form, scope and substance) shall be substance reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3iii) obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriters from the Company's independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants 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 the selling holders each of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offeringsofferings and such other matters as reasonably requested by underwriters; and (4iv) if an underwriting agreement is entered into, the same shall set forth in full the contain indemnification provisions and procedures no less favorable than those set forth in Section 5 hereof (or such other provisions and procedures acceptable to Holders of Section 8 hereof a majority in aggregate principal amount of Registrable Securities covered by such Registration Statement and the managing underwriters or agents) with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement agreement, or as and to the extent required thereunder;.
(om) make Make available for inspection by a representative any Holder of the holders of a majority of the such Registrable SecuritiesSecurities being sold, any underwriter participating in any such disposition pursuant to such registrationof Registrable Securities, if any, and any attorney attorney, accountant or accountant other agent retained by any such Holder, or underwriter (collectively, the sellers or underwriter"Inspectors"), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Companyissuers and their respective subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the Company's officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant Inspector in connection with such registration; provided that Registration Statement. Records which the Company determines, in good faith, to be confidential and any records, information or documents that Records which it notifies the Inspectors are designated confidential shall not be disclosed by the Company in writing as confidential shall be kept confidential by such Persons Inspectors unless (i) the disclosure of such recordsRecords is necessary to avoid or correct a misstatement or omission in such Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) the information or documents in such Records has been made generally available to the public. Each Holder of such Registrable Securities will be required to agree that 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 securities of the Company unless and until such is made generally available to the public. Each Holder of such Registrable Securities will be required by to further agree that it will, upon learning that disclosure of such Records is sought in a court or administrative order;of competent jurisdiction, give notice to the Company and allow the Company to undertake appropriate action to prevent disclosure of the Records deemed confidential at their expense.
(pn) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, the Holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act, ) no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1i) 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 (2) 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 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.fisca
Appears in 1 contract
Sources: Note Registration Rights Agreement (Physicians Clinical Laboratory Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to of the Company under Section 3 2 hereof, the Company will use its best efforts to effect such registration to permit shall:
(a) Prepare and file with the SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act available for the sale of such the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided that before filing a any Registration Statement or Prospectus or any amendments or supplements theretothereto with the SEC, the Company will shall furnish to the holders of Placement Agents, any Holders who so request and counsel for the Registrable Securities covered by such Registration Statement Holders and for the underwritersPlacement Agents (or, if anyapplicable, one separate counsel for the Holders) copies of all such documents proposed to be filed, which documents will be subject filed and use its best efforts to reflect in each such document when so filed with the SEC such comments as such counsel reasonably shall propose within three (3) Business Days of the delivery of such copies to the reasonable review of Placement Agents, any Holders and such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;counsel.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldcontinuously effective until the expiration of the Effectiveness Period; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and use its best efforts to comply with the provisions of the Securities Act applicable to them with respect to the disposition of all securities covered by such Registration Statement during the applicable period Effectiveness Period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify As promptly as practicable give notice to the selling holders of Registrable Securities Notice Holders, the Placement Agents, the Holders and counsel for the managing underwritersHolders and for the Placement Agents (or, if anyapplicable, promptly, and one separate counsel for the Holders) (if requested by any such Person) confirm such advice in writing, (1i) when the any Prospectus, Prospectus or any Prospectus supplement supplement, Registration Statement or post-effective amendment to a Registration Statement has been filed, filed with the SEC and, with respect to the a Registration Statement or any post-effective amendment, when the same has become been declared effective, (2ii) of any request request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the SEC or any other federal or state governmental authority for amendments or supplements to the any Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Registration Statement or the initiation or threatening of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) 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 purpose, (v) after the effective date of any Registration Statement filed pursuant to this Agreement of the occurrence of (but not the nature of or details concerning) a Material Event and (6vi) of the happening determination by the Company that a post-effective amendment to a Registration Statement will be filed with the SEC, which notice may, at the discretion of any the Company (or as required pursuant to Section 3(i)), state that it constitutes a Deferral Notice, in which 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 provisions of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;Section 3(i) shall apply.
(d) make every reasonable effort Use its best efforts to prevent the issuance of, and, if issued, to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment;, and provide prompt notice to each Notice Holder and the Placement Agents of the withdrawal of any such order.
(e) if If reasonably requested by the managing underwriter Placement Agents or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringany Notice Holder, as promptly as practicable incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such information as the managing underwriters Placement Agents, such Notice Holder or counsel for the Holders and for the holders Placement Agents (or, if applicable, one separate counsel for the Holders) shall, on the basis of a majority written opinion of the Registrable Securities being sold agree should nationally-recognized counsel experienced in such matters, determine to be required to be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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; applicable law and make all any required filings of such Prospectus supplement or such post-effective amendment as soon as notified provided that the Company shall not be required to take any actions under this Section 3(e) that, in the written opinion of counsel for the matters to be incorporated Company, are not in such Prospectus supplement or post-effective amendment;compliance with appliance law.
(f) As promptly as practicable furnish to each selling holder of Registrable Securities Notice Holder, counsel for the Holders and each managing underwriterfor the Placement Agents (or, if applicable, one separate counsel for the Holders) and the Placement Agents, without charge, at least one signed (1) conformed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated unless requested in writing to the Company by referencesuch Notice Holder, such counsel or the Placement Agents);.
(g) During the Effectiveness Period, deliver to each selling holder Notice Holder, counsel for the Holders and for the Placement Agents (or, if applicable, one separate counsel for the Holders) and the Placement Agents, in connection with any sale of Registrable Securities and the underwriters, if anypursuant to a Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons Notice Holder may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of the such Prospectus or any each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if anyNotice Holder, in connection with the any offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;thereto in the manner set forth therein.
(h) prior Prior to any public offering of the Registrable SecuritiesSecurities pursuant to the Shelf Registration Statement, use its best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel Notice Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller or underwriter Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder’s offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the such Registrable Securities covered by in the manner set forth in the relevant Registration StatementStatement and the related Prospectus; provided that the Company will not be required to (i) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction where it is they would not then so qualified otherwise be required to qualify but for this Agreement or to (ii) take any action which that would subject it them to general service of process in suits or to taxation in any such jurisdiction where it is they are not then so subject;.
(i) cooperate Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and 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 respect to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Shelf Registration Statement to be registered with under Section 8(d) or approved by such other governmental agencies or authorities as may be necessary to enable 8(e) of the seller or sellers thereof or the underwritersSecurities Act, if any, to consummate the disposition of such Registrable Securities;
(kB) upon the occurrence of any event contemplated by paragraph or the existence of any fact as a result of which any Registration Statement shall 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, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (c)(6C) the occurrence or existence of any pending corporate development (a “Material Event”) that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus, (i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a supplement or posteffective post-effective amendment to the such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will that such Registration Statement does not contain an 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, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that the Company may rely on information provided by each Notice Holder with respect to such Notice Holder), as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, subject to the next sentence, use its best efforts to cause it to be declared effective as promptly as is practicable, and (ii) give notice to the Notice Holders, the Placement Agents and counsel for the Holders and for the Placement Agents (or, if applicable, one separate counsel for the Holders) that the availability of the Shelf Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the reasonable judgment of the Company, the Registration Statement does not contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus does not contain any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
, and (lz) cause all Registrable Securities covered by in the case of clause (C) above, as soon as, in the reasonable discretion of the Company, such suspension is no longer appropriate. The period during which the availability of the Registration Statement to be listed on each securities exchange on which similar securities issued by and any Prospectus is suspended (the “Deferral Period”) without the Company are then listed if requested incurring any obligation to pay liquidated damages pursuant to Section 2(e), shall not exceed forty-five (45) days in any ninety- (90-) day period and ninety (90) days in any twelve- (12-) month period.
(j) Make available for inspection during normal business hours by a representative for the holders of a majority Notice Holders of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant broker-dealers, attorneys and accountants retained by the sellers or underwritersuch Notice Holders, all relevant financial and other records, records and pertinent corporate documents and properties of the CompanyCompany and its subsidiaries, and cause the Company's appropriate officers, directors and employees of the Company and its subsidiaries to supply make available for inspection during normal business hours all relevant information reasonably requested by such representative for the Notice Holders, or any such representativebroker-dealers, underwriter, attorney attorneys or accountant accountants in connection with such registrationdisposition, in each case as is customary for similar “due diligence” examinations; provided provided, however, that such persons shall first agree in writing with the Company that any records, information or documents that are is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such Persons persons and shall be used solely for the purposes of exercising rights under this Agreement, unless (i) disclosure of such records, information or documents is required by court or administrative order;order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of any Registration Statement or the use of any Prospectus referred to in this Agreement), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such person or (iv) such information becomes available to any such person from a source other than the Company and such source is not bound by a confidentiality agreement or is not otherwise under a duty of trust to the Company, and provided that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by the one counsel for the Holders referred to in Section 5.
(pk) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act, ) no later than 45 days after the end of any 12-month period (or 90 days, days after the end of any 12-month period if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, beginning with on the first month day of the Company's first fiscal quarter of the Company commencing after the effective date of the a Registration Statement, which statements shall cover said 12-month periods; and.
(ql) promptly Cooperate with each Notice Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be in such denominations as are permitted by the Indenture and registered in such names as such Notice Holder may request in writing at least (2) Business Days prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition sale 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(kSecurities.
(m) hereof, such holder will forthwith discontinue disposition of Provide a CUSIP number for all Registrable Securities until such holder's receipt of covered by each Registration Statement not later than the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance effective date of such Registration Statement shall and provide the Trustee and the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be extended by made with the number National Association of days during Securities Dealers, Inc.
(o) Upon (i) the period from and including the date filing of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Initial Registration Statement shall have received and (ii) the copies effectiveness of the supplemented or amended prospectus contemplated by Section 6(k) hereof or Initial Registration Statement, announce the Advice.same, in e
Appears in 1 contract
Sources: Registration Rights Agreement (Endeavour International Corp)
Registration Procedures. In connection with the Company's registration obligations Registration to be effected pursuant to Section 3 hereofthe Resale Shelf Registration Statement, and whenever the Company will holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a takedown offering, Pubco shall use its commercially reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Pubco shall as expeditiously as reasonably possible:
(a) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities ActStatement, which form shall and all amendments and supplements thereto and related prospectuses as may be available for the sale of the necessary to comply with applicable securities laws, with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its commercially reasonable best efforts to cause such Registration Statement to become effective; effective (provided that at least two (2) Business Days before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will Pubco shall furnish to counsel selected by the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, Applicable Approving Party copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such holders and underwriterscounsel, and no such document shall be filed with the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto Commission to which the holders of a majority of the Registrable Securities covered by such Registration Statement Key Individual or the underwriters, if any, shall Sponsor or their respective counsel reasonably objectobjects);
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; 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 with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders each holder of Registrable Securities and the managing underwriters, if any, promptly, and of (if requested by any such PersonA) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment 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 additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the any Registration Statement or the initiation of any proceedings for that purpose, (4B) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company Pubco or its counsel 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 purpose, and (6C) the effectiveness of the happening of any event which makes any statement made in the each 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 in order to make the statements therein not misleadingStatement filed hereunder;
(dc) make every reasonable effort prepare and file with the Commission such amendments and supplements to obtain the withdrawal of any order suspending the effectiveness of the such Registration Statement at and the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold prospectus used in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment therewith as may be necessary to keep such information as the managing underwriters Registration Statement and the holders prospectus used in connection therewith current, effective and available for the resale of a majority all 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities required to be sold in such offering; and make covered thereby for a period ending when all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by such Registration Statement have been disposed of in accordance with the Prospectus intended methods of distribution by the sellers thereof set forth in such Registration Statement or any amendment no longer constitute Registrable Securities (or, if such Registration Statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or supplement theretodealer) and comply with the provisions of the Securities Act applicable to Pubco 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 sellers thereof set forth in such Registration Statement;
(hd) prior furnish to any public offering each seller of Registrable SecuritiesSecurities thereunder 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 and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller the lead underwriter or underwriter the Applicable Approving Party reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; such seller (provided that the Company will Pubco shall not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified or otherwise be required to take any action which would subject it qualify but for this Section 5(f), (ii) consent to general service of process in any such jurisdiction where it is not then so subjector (iii) subject itself to taxation in any such jurisdiction);
(ig) cooperate with the selling holders promptly notify in writing each seller of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities (i) 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 when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) of any request by the Commission for the amendment or supplementing of such Registration Statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be in such denominations and registered in such names as delivered under the managing underwriters may request at least two business days prior to any sale Securities Act, of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence happening of any event contemplated by paragraph (c)(6) aboveas a result of which 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 not misleading, prepare and, at the request of any such seller, Pubco promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lh) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company Pubco are then listed if requested by the holders of listed;
(i) provide a majority of transfer agent and registrar for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nj) enter into and perform such customary agreements (including an underwriting agreementagreements in customary form) and take all such other actions in connection therewith as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and (including, without limitation, in the case of a marketed underwritten Public Offering involving gross proceeds in excess of $35,000,000, participating in such connectionnumber of “road shows”, whether or not an underwriting agreement is entered into investor presentations and whether or not marketing events as the registration is an underwritten registration (1) make underwriters managing such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be offering may reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderrequest);
(ok) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by the sellers or any such underwriter, all financial and other records, pertinent corporate and business documents and properties of the CompanyPubco as shall be reasonably requested to enable them to exercise their due diligence responsibility, and cause the Company's Pubco’s officers, directors managers, directors, employees, agents, representatives and employees independent accountants to supply all information reasonably requested by any such representative, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationRegistration Statement; provided provided, however, that any recordssuch underwriter enters into a confidentiality agreement, information in form and substance reasonably satisfactory to Pubco, prior to the release or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of any such recordsinformation;
(l) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, information or documents is required by court of any order suspending or administrative preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, use its commercially reasonable best efforts to promptly obtain the withdrawal of such order;
(pm) otherwise if the case of an underwritten Public Offering, use its reasonable best efforts to comply with all applicable rules obtain a cold comfort letter from Pubco’s independent public accountants and regulations addressed to the underwriters, in customary form and covering such matters of the SEC, and make generally available to its security holders, earnings statements satisfying type customarily covered by cold comfort letters as the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such registration reasonably request; and
(n) in the case of an offeringunderwritten Public Offering, beginning with use its reasonable best efforts, to provide a legal opinion and negative assurance letter of Pubco’s outside counsel, dated the first month date of the Company's first fiscal quarter commencing after closing under the effective date of 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 relating thereto in customary form and covering such matters of the type customarily covered by legal opinions and negative assurance letters of such nature, which statements legal opinion and negative assurance letter shall cover said 12-month periods; and
(q) promptly prior be addressed to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.
Appears in 1 contract
Sources: Registration Rights Agreement (Pinstripes Holdings, Inc.)
Registration Procedures. In connection with the Company's registration obligations Whenever any Holder has requested that any Registrable Shares be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best efforts to effect such the registration to permit and the sale of such Registrable Securities Shares in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable, and pursuant thereto the Company will shall as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, SEC by the Required Filing Date a Registration Statement or Registration Statements registration statement on any the appropriate form under the Securities Act, which form shall be available for the sale of the Act with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Shares and use its best efforts to cause such Registration Statement registration statement to become effective; effective as soon as practicable after the initial filing thereof, provided that as far in advance as practicable before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements amendment thereto, the Company will shall furnish to the holders selling Holders copies of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies reasonably complete drafts of all such documents proposed prepared to be filedfiled (including exhibits), which documents will be subject and any such Holder shall have the opportunity to the reasonable review of such holders and underwriters, object to any information contained therein and the Company will not file shall make any Registration Statement corrections or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered other amendments reasonably requested by such Registration Statement Holder with respect to such information prior to filing any such registration statement or the underwriters, if any, shall reasonably objectamendment;
(b) except in the case of a Shelf Registration, prepare and file with the SEC such amendments and amendments, post-effective amendments amendments, and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, a period of not less than 180 days (or such shorter lesser period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause as is necessary for the Prospectus underwriters in an underwritten offering to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; sell unsold allotments) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement registration statement;
(c) in the case of a Shelf 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 Registrable Shares subject thereto for a period ending on the earlier of (i) 24 months after the effective date of such registration statement and (ii) the date on which all the Registrable Shares subject thereto have been sold pursuant to such registration statement;
(d) furnish to each seller of Registrable Shares and the underwriters of the securities being registered such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), any documents incorporated by reference therein and such other documents as such seller, underwriters may reasonably request in order to facilitate the disposition of the Registrable Shares owned by such seller or the sale of such securities by such underwriters (it being understood that, subject to Section 2.5 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each seller and the underwriters in connection with the offering and sale of the Registrable Shares covered by the registration statement of which such prospectus, amendment or supplement is a part);
(e) use its best efforts to register or qualify such Registrable Shares under such other securities or "blue sky" laws of such jurisdictions as the Prospectusmanaging underwriters reasonably request (or, in the event the registration statement does not relate to an underwritten offering, as the holders of a majority of such Registrable Shares may reasonably request); use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to be kept effective; and do any and all other acts and things which may be reasonably necessary or advisable to enable each seller to consummate the disposition of the Registrable Shares owned by such seller in such jurisdictions; provided that the Company shall not be deemed required to have used its best efforts (i) qualify generally to keep a Registration Statement effective during the applicable period if do business in any jurisdiction where it voluntarily takes would not otherwise be required to qualify but for this subparagraph or (ii) consent to general service of process in any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablejurisdiction;
(cf) promptly notify the each selling holders of Registrable Securities Holder and the managing underwriters, if any, promptly, and each underwriter in writing (if requested by any such Person) confirm such advice in writing, (1i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, filed and, with respect to the Registration Statement a 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 additional information, (3ii) of the issuance by the Commission any state securities or other regulatory authority of any stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement Registrable Shares under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, and (4iii) if such registration statement or related prospectus, at the time it or any amendment thereto became effective or at any time the representations and warranties of the Company contemplated by paragraph (o) below cease such prospectus is required to be true and correct, (5) of the receipt by the Company 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 and (6) 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 in order to make the statements therein 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 moment;
(e) if 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 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the 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 each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; 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 connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale delivered under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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;
(i) cooperate with the selling holders of Registrable Securities and the managing underwritersAct, 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;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain contained an untrue statement of a material fact or omit omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, upon the discovery by the Company of such material misstatement or omission or of the happening of any event as a result of which the Company believes there would be such a material misstatement or omission; provided that, in the case of clause (iii), promptly after delivery of such notice, the Company shall, as the case may be, (x) prepare and file with the SEC a post-effective amendment to such registration statement and use its best efforts to cause such amendment to become effective so that such registration statement, as so amended, shall not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or (y) prepare and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Shares, such prospectus shall not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(lg) cause all Registrable Securities covered by the Registration Statement permit (i) any selling Holder that, in such Holder's sole and exclusive judgment, might reasonably be deemed to be listed on each securities exchange on which similar securities issued by an underwriter or a controlling person of the Company are then listed if requested by (in each case, within the holders meaning of the Securities Act) and (ii) any selling Holder holding, or representing Holders of, a majority of the Registrable Shares included in such Registrable Securities registration statement, to participate in the preparation of such registration statement or related prospectus and promptly incorporate any information furnished to the managing underwritersCompany by such Holder that, if anyin the reasonable judgment of such Holder and its counsel, should be included;
(mh) not later than the effective date make reasonably available senior management of the Registration StatementCompany, provide a CUSIP number for all Registrable Securities and provide as selected by the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders Holders of a majority of the Registrable Securities being sold) addressed to each selling holder and Shares included in such registration, for assistance in the underwriters, if any, covering marketing of the matters customarily Registrable Shares covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from registration, including the participation of such members of the Company's independent certified public accountants addressed to senior management in road show presentations, provided that such assistance does not unduly interfere with the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters normal operations of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderordinary course of business, consistent with past practice;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(pi) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, including the Securities Act and the Exchange Act, and make generally available to its the Company's security holders, holders an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act, Act no later than 45 30 days after the end of any the 12-month period (or 90 days, if such period is a fiscal year) (1) 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 (2) if not sold to underwriters in such an offering, beginning with the first month day of the Company's first fiscal quarter commencing after the effective date of the Registration Statementa registration statement, which statements earnings statement shall cover said 12-month periodsperiod, provided that such requirement shall be deemed satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act as required thereby and otherwise complies with Rule 158 under the Securities Act;
(j) if requested by the managing underwriters or any selling Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters or such selling Holder reasonably requests to be included therein, including with respect to the Registrable Shares being sold by such selling Holder, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(k) as promptly as practicable after filing with the SEC of any document that is incorporated by reference into a registration statement (in the form in which it was incorporated), deliver a copy of each such document to each selling Holder, if requested by such Holder;
(l) cooperate with the selling Holders and the managing underwriters to facilitate the timely preparation and delivery of certificates representing securities sold under any registration statement, which certificates shall not bear any restrictive legends unless required under applicable law, and enable such securities to be in such denominations and registered in such names as the managing underwriters 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;
(m) promptly make available for inspection by any selling Holder and 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 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 that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the 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 (n) if (i) the Company reasonably determines in good faith, after consultation with outside counsel, 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 clause (ii) such Holder of Registrable Shares requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further that each Holder of Registrable Shares agrees that it shall, 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;
(n) furnish to each selling Holder and underwriter a signed counterpart of (i) an opinion or opinions of counsel to the Company addressed to them, and (ii) a comfort letter or comfort letters from the Company's independent public accountants addressed to them, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the sellers or managing underwriters reasonably request;
(o) cause the Registrable Shares included in any 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) quoted on the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System or the Nasdaq National Market if similar securities issued by the Company are quoted thereon;
(p) provide a transfer agent and registrar for all Registrable Shares registered hereunder;
(q) use its best efforts to cause Registrable Shares covered by such registration statement to be registered with or approved by such other government agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Shares;
(r) cooperate with each selling Holder and each underwriter participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the NASD;
(s) as may be required in connection with the initial filing of any registration statement, and during the period when the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(t) notify each seller of Registrable Shares promptly of any request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information;
(u) if applicable, enter into an underwriting agreement for such offering, such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to that offering, including indemnities and contribution to the effect and to the extent provided in Section 2.8 and the provision of opinion of counsel and accountants' letters to the effect and to the extent provided in Section 2.5(n). The selling Holders shall be parties to any such underwriting agreement, and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such selling Holders; and
(qv) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require advise 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities thatShares, upon receipt of any promptly after it shall receive notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possessionobtain knowledge thereof, of the Prospectus covering issuance of any stop order by the SEC suspending the effectiveness of such Registrable Securities current registration statement or the initiation or threatening of any proceeding for such purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the time of receipt of earliest possible moment if such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall stop order should be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Adviceissued.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations of the Company pursuant to Section 3 hereof2, the Company will shall use its best efforts to effect such or cause to be effected the registration of the Registrable Securities under the Securities Act to permit the sale of such Registrable Securities by Taminco Holdings in accordance with the their intended method or methods of distribution thereofdistribution, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) (i) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate with the SEC which shall comply as to form under with the Securities Act, which form shall be available for the sale requirements of the Registrable Securities in accordance with the intended method or methods of distribution thereof applicable form and shall include all financial statements required by the SEC to be filed therewiththerewith and all other information reasonably requested by the lead managing Underwriter or sole Underwriter, cooperate and assist in any filings required if applicable, to be made with the NASDincluded therein, and (ii) use best efforts to cause such Registration Statement to become effective; provided effective and remain effective in accordance with Section 2, (iii) use best efforts to not take any action that before filing would cause a Registration Statement to contain a material misstatement or Prospectus omission or any amendments or supplements thereto, the Company will furnish to the holders be not effective and usable for resale of the Registrable Securities covered by during the period that such Registration Statement is required to be effective and usable, and (iv) cause each Registration Statement and the underwritersrelated Prospectus and any amendment or supplement thereto, if anyas of the effective date of such Registration Statement, copies amendment or supplement (x) to comply in all material respects with any requirements of all such documents proposed the Securities Act and the rules and regulations of the SEC and (y) not to contain any untrue statement of a material fact or omit to state a material fact required to be filed, which documents will be subject stated therein or necessary to make the reasonable review of such holders and underwriters, and the Company will statements therein not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectmisleading;
(b) subject to paragraph (j) of this Section 4, prepare and file with the SEC such amendments and post-effective amendments to the each such Registration Statement Statement, as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the each such Prospectus to be supplemented by any required Prospectus 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 with respect to the disposition of all securities covered by such each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof Taminco Holdings thereof, as set forth in such registration statement;
(c) furnish to Taminco Holdings and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as Taminco Holdings or such Underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities; the Company hereby consents to the use of the Prospectus, including each preliminary Prospectus, by Taminco Holdings and each Underwriter of an Underwritten Offering of Registrable Securities, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or the preliminary Prospectus;
(d) (i) use best efforts to register or qualify the Registrable Securities, no later than the time the applicable Registration Statement is declared effective by the SEC, under all applicable state securities or supplement “blue sky” laws of such jurisdictions as each Underwriter, if any, or Taminco Holdings, shall reasonably request; (ii) use best efforts to keep each such registration or qualification effective during the Prospectusperiod such Registration Statement is required to be kept effective; and (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable each such Underwriter, if any, and Taminco Holdings to consummate the disposition in each such jurisdiction of such Registrable Securities the registration of which Taminco Holdings is requesting; provided, however, that the Company shall not be deemed obligated to have used its best efforts qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified, to keep a Registration Statement effective during the applicable period if it voluntarily takes subject itself to taxation in any action that would result such jurisdiction or to consent to be subject to general service of process (other than service of process in selling holders connection with such registration or qualification or any sale of the Registrable Securities covered thereby not being able to sell in connection therewith) in any such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablejurisdiction;
(ce) notify the selling holders of Registrable Securities and the managing underwriters, if any, Taminco Holdings promptly, and (and, if requested by any such Person) Taminco Holdings, confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or has become effective and when any post-effective amendment, when the same has amendments and supplements thereto become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iii) if at if, between the effective date of a Registration Statement and the closing of any time sale of securities covered thereby pursuant to any agreement to which the Company is a party, the representations and warranties of the Company contemplated by paragraph (o) below contained in such agreement cease to be true and correct, (5) of the receipt by correct in all material respects or if the Company of receives 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 purpose, and (6iv) of the happening of any event during the period a Registration Statement is effective as a result of which makes such Registration Statement or the related Prospectus contains any untrue statement made in the Registration Statement, the Prospectus of a material fact or omits to state any document incorporated material fact required to be stated 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 in order necessary to make the statements therein not misleading;
(df) make every reasonable effort furnish counsel for each such Underwriter, if any, and for Taminco Holdings copies of any request by the SEC or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information;
(g) use best efforts to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible momenttime;
(eh) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringupon request, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating furnish to the plan sole Underwriter or lead managing Underwriter of distribution with respect to such an Underwritten Offering of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such 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 required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterif any, without charge, at least one signed copy of the each 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 exhibits; and furnish to each selling holder of Registrable Securities and the underwriters, if anyTaminco Holdings, without charge, as many copies at least one conformed copy of the Prospectus (including each preliminary prospectus) Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or supplement thereto as such Persons may reasonably request; 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 underwritersexhibits thereto, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the 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 subjectunless requested);
(i) cooperate with Taminco Holdings and the selling holders sole Underwriter or lead managing Underwriter of an Underwritten Offering of Registrable Securities and the managing underwritersSecurities, 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 (consistent with the provisions of the governing documents thereof) and registered in such names as Taminco Holdings or the sole Underwriter or lead managing underwriters Underwriter of an Underwritten Offering of Registrable Securities, if any, may reasonably request at least two three business days prior to any sale of Registrable Securities to the underwritersSecurities;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6e)(iv) aboveof this Section, use best efforts to prepare a supplement or posteffective post-effective amendment to the a Registration Statement or the related Prospectus Prospectus, or any document incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the such Prospectus will not contain an any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nk) enter into such customary agreements (including, in the case of an Underwritten Offering, underwriting agreements in customary form, and including an underwriting agreementprovisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to indemnification and contribution contained herein) and take all such other customary and appropriate actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration connection therewith:
(1) make such representations and warranties to the holders of such Registrable Securities Taminco Holdings and the underwritersUnderwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary similar underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; offerings;
(2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwritersUnderwriter, if any, and the holders of a majority of the Registrable Securities being soldTaminco Holdings) addressed to each selling holder Taminco Holdings and the underwritersUnderwriters, if any, covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such holders Taminco Holdings and underwriters; the Underwriters;
(3) obtain "“cold comfort" ” letters and updates thereof from the Company's ’s independent certified public accountants addressed to the selling holders of Registrable Securities Taminco Holdings, if permissible, and the underwritersUnderwriters, if any, such which letters to shall be customary in customary form and covering shall cover matters of the type customarily covered in "“cold comfort" ” letters by to underwriters in connection with primary underwritten offerings; ;
(4) if an underwriting to the extent requested and customary for the relevant transaction, enter into a securities sales agreement is entered intowith Taminco Holdings providing for, among other things, the same appointment of such representative as agent for Taminco Holdings for the purpose of soliciting purchases of Registrable Securities, which agreement shall set forth be customary in full the indemnification provisions form, substance and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Sectionscope and shall contain customary representations, warranties and covenants; and and
(5) the Company shall deliver such customary documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold and Taminco Holdings or by the managing underwritersUnderwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done (i) at the effectiveness of such Registration Statement (and each post-effective amendment thereto) in connection with any registration, and (ii) at each closing under such any underwriting or similar agreement or as and to the extent required thereunder;
(ol) make available for inspection by a representative representatives of the holders of a majority of the Registrable Securities, Taminco Holdings and any underwriter Underwriters participating in any disposition pursuant to such registration, a Registration Statement and any attorney counsel or accountant retained by Taminco Holdings or the sellers or underwriterUnderwriters, all relevant financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, underwriterUnderwriter, attorney counsel or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative ordera Registration Statement;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal yearm) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in within a firm or best efforts underwritten offering, or (2) 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 12-month periods; and
(q) promptly reasonable time prior to the filing of any document which is Registration Statement, any Prospectus, any amendment to be incorporated by reference into the a Registration Statement or the Prospectus (after initial filing of the Registration Statement)amendment or supplement to a Prospectus, provide copies of such document to Taminco Holdings and its counsel to the selling holders of Registrable Securities and to the managing underwritersUnderwriter(s) of an Underwritten Offering of Registrable Securities, if any, ; fairly consider such reasonable changes in any such document prior to or after the filing thereof as the counsel to Taminco Holdings or the Underwriter(s) may request and not file any such document in a form to which Taminco Holdings or any Underwriter shall reasonably object; and make such of the Company's representatives of the Company as shall be reasonably requested by Taminco Holdings or any Underwriter available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 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 as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees 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(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") 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 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 regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to 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(k) hereof or the Advice.document;
Appears in 1 contract
Sources: Registration Rights Agreement (TAMINCO ACQUISITION Corp)